Indiana Metal Products Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1952

100 N.L.R.B. 1040 (N.L.R.B. 1952)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that any employee who is on the seniority list and eligible
for recall is entitled to vote.
The Board has heretofore held that the mere fact that laid-off
employees have contractual seniority rights does not entitle them to
vote, but rather the test of the right to vote is whether they have a
reasonable expectation of reemployement in the near future.8 The
record shows that the employees under consideration have no such
expectancy of recall. Accordingly, we find that, as there is no rea-
sonable prospect of reemployment of the employees in question, they,
are ineligible to participate in the election.
Order
IT IS HEREBY ORDERED that the petitions filed in Cases Nos. 8-RC-
1626 and 8-RC-1627 be, and they hereby are, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
8 General Motors Corporation , 92 NLRB 1752 ; Igleheart Brothers Division General
Foods Corporation, 96 NLRB 1005 ; Vulcan Tin Can Co ., 97 NLRB 180.
INDIANA METAL PRODUCTS CORPORATION and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA , CIO. Case No. 13-CA-5149. September 8,
195f
Decision and Order
On December 28, 1951, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that the Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the Respondent and the Union each filed
exceptions to the Intermediate Report, with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Styles, and
Peterson].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
I A copy of its brief before the Trial Examiner was also Med by the Respondent in
support of its exceptions.
100 NLRB No. 161.
INDIANA METAL PRODUCTS CORPORATION 1041
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and supporting briefs, and the entire
record in the case, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, with the exceptions, addi-
tions, and modifications set forth below.
1. We agree with the Trial Examiner's finding that the Respond-
ent violated Section 8 (a) (1) of the Act by (a) Foreman Lewis'
threat to employee Gilliland, about the middle of May 1950, that if he
"joined a union or signed any papers" his "days would be numbered";
(b) Foreman Roe's interrogation of employee Sheetz on April 24,
1950, concerning Sheetz' union membership and his statement to
Sheetz that "there are 50 people that . . . [signed union cards]
and they are all going to get fired"; and (c) granting its employees
paid holiday and insurance benefits for the purpose of inducing them
to reject the Union .3
In reaching this conclusion, we reject, as the Trial Examiner did,
the Respondent's contention that it should not be held in violation of
the Act on account of Lewis' and Roe's conduct, because only isolated
incidents are involved, it instructed its supervisors not to interfere
with the Union's organizational campaign, and it made plain to the
employees that they could join, or refrain from joining, the Union,
without fear of reprisal. For the interrogation and threats by Lewis
and Roe were in fact part of a general pattern of unlawful conduct
by the Respondent designed to thwart the Union, and were not, as
the Respondent argues, mere isolated incidents. The instructions to
the foremen, which were first given on April 28, after the interrogation
and threat by Foreman Roe, were never communicated to the em-
ployees' And the alleged statements of neutrality contained nothing
therein specifically referring to, or disavowing, the prior unlawful
conduct of Lewis and Roe.5 Moreover, the protestations of neutrality
were belied by Respondent's subsequent unlawful conduct discussed
below.
2 The exceptions filed with respect to the credibility findings made by the Trial Exam-
iner are without merit. As set forth in Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F. 2d 362 (C. A. 3), the Board attaches great weight to the credibility findings
of Trial Examiners insofar as they are based on demeanor, and accordingly does not over-
rule a Trial Examiner's resolution of credibility except where a clear preponderance of all
the relevant evidence convinces us that this resolution was incorrect. No basis exists for
overruling him in this case. We therefore adopt the Trial Examiner's credibility findings.
8 For the reasons appearing in the Intermediate Report, we agree with the Trial Exam-
iner's finding that there is no merit in the Respondent's claim that Section 10 (b) of the
Act requires a dismissal of that part of the complaint which alleges these 8 (a) (1)
violations because neither the charge nor the amended charge specifically sets forth such
conduct. See N. L. R. B. v. Samuel J. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8
(C. A. 1). See also Pacific American Shipowners Association, et al., 98 NLRB 582, and
cases cited therein. The Respondent's related motion to dismiss is accordingly denied.
ON. L. R. B. v. Bird Machine Co., 161 F. 2d 589 (C. A. 1) ; Eastman Cotton Mills, 90
NLRB 31, 79.
5 Eastman Cotton Mills, supra, at page 79 ; Fulton Bag and Cotton Mills, 75 NLRB 883,
mod. on other grounds, 175 F 2d 675 (C. A 5).
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do we perceive any basis for disturbing the Trial Examiner's
findings as to the paid holiday and insurance programs . The paid
holiday plan was formally announced to the employees on June,20,
1950, less than a month after the hearing on the Union's representation
petition which was filed on April 27, 1950.11 Although the Respond-
'ent's board of directors in December 1949 authorized the adoption of
such a program when adequate funds were available for the purpose,
,the record does not support the Respondent's claim that, by about
June 20, a paid holiday plan was financially feasible, and that it was
for that reason, and no other, that the plan was placed in effect. The
production graph relied upon by the Respondent shows only the
:approximate number of units produced since January of 1950, and in
no way proves the financial capacity claimed by the Respondent.
Moreover, the graph, when considered in the light of other evidence in
the record, suggests that the time was not financially propitious for
instituting the paid holiday plan .7 Thus, it appears that the Respond-
ent's production in April was low, that June was a declining month
production-wise, and that, at the time the plan was announced, the
.Respondent expected the following month's production to be low on
account of the plant's shutdown for 10 days to provide vacation time
for the employees. Further, even assuming an interpretation of the
.evidence of Respondent's financial capabilities most favorable to, it,
the Respondent's position would not be any more tenable. For ;it
would then appear that the Respondent was financially able to grant
its employees paid holiday benefits not only on about June 20, but also
,before the filing of the representation petition, as pointed out by the
Trial Examiner. Significantly enough, this was not done. In the face
-of all the foregoing, including the facts that the Respondent was not
committed to its employees to announce the plan when it did, and that
no other compelling legitimate reason for the announcement at that
time has been shown, we find for the reasons stated by the Trial Exam-
iner that the announcement was timed to induce the employees to
reject the Union s -
With respect to the insurance program, the record shows that on
July 25, just 8 days before the Board directed an election at the Re-
spondent's plant, the Respondent entered into an insurance contract
for the benefit of its employees and immediately advised the employees
5 Case No. 13-RC-1270.
7 Under the announced plan, the Fourth of July was to be the first holiday entitling the
employees to this benefit
8 Significantly, on August 15, 8 days before the Board-directed election at its plant was
to be held , ,the Respondent sent a letter to each of its employees in which it urged them
to vote against the Union and pointed out, among other things, that
The CIO tells a great story about the shiny side of its wares . It speaks of high
wages, vacation pay, holiday pay, job security ; and insurance benefts. These are all
good things , and we have them here rsght now . . . (Emphasis added.)
INDIANA METAL PRODUCTS CORPORATION 1043
of that fact.9 Although the Respondent's board of directors had, in
December 1948, approved the idea of an insurance program, the
Respondent contends that it was not until ,July 1950 that it was finally
able to obtain an insurance contract which made provision- for divi-
dends to, the employees and for the computation of premiums based on
the Respondent's own experience, and that the insurance plan was
announced to the employees at that time without regard to any other
considerations. As stated above, however, we are not impressed with
the Respondent's position in this matter. General Manager Schroe-
der's testimony, for example, that "something that happened in the
spring of 1950", made possible for the first time since December 1948 the
type of insurance contract desired by the Respondent, is vague and un-
convincing. Moreover, the detailed description of the insurance con-
tract signed by the Respondent which was sent to the employees during
the latter part of July, although accompanied by a letter in which the
Respondent stated that the adopted plan "fits the needs of our people
as you will see on the following pages," significantly fails to refer to
the features for which the Respondent allegedly waited about a year
and a half. Furthermore, although the Respondent testified-that the
'-insurance program . . . could have been instituted earlier as far as
the financial condition of the company was concerned," no evidence
was offered to support this claim. And the evidence in the record
bearing on the Respondent's financial capabilities would appear to
support the conclusion that the insurance benefits were not extended
to the employees at a financially propitious time. That the Respond-
ent extended these benfits to its employees under apparently adverse
circumstances, even though it was not committed to grant them at
that time, becomes, therefore increasingly significant.
On the basis of the foregoing, and the entire record, including the
precipitate nature and timing of the Respondent's action and the
Respondent's failure to offer a satisfactory explanation therefor, and
the Respondent's antipathy to the Union, we agree with the Trial
Examiner that the institution of the insurance program, like that of
the paid holiday program, was reasonably calculated to influence the
employees in their choice of a bargaining representative."' And this
is so, even though put into effect "without strings," as the Respondent
asserts."
2. We find, as the Trial Examiner did, that the Respondent vio-
lated Section 8 (a) (2) and 8 (a) (1) of the Act by its domination
0 The fact that the contract had been offered to the Respondent sometime between July
14 and 25 was also brought to the attention of the employees forthwith.
10 See footnote 8 in this connection . In recommending that the election held at the
Respondent 's plant on August 23 be set aside , a similar finding was made by the Regional
Director No exceptions thereto were filed by the Respondent.
1' See Queen Ctty Valves , Inc., 93 NLRB 1576.
227260-53-vol. 100-67
1044 DECISIONS OF NATIOI`TAL LABOR RELATIONS BOARD
and support of the Advisory Committee. The Respondent does not
deny that it has dominated and supported the Advisory Committee
since its inception. It disputes, however, the Trial Examiner's finding
that the Advisory Committee is a "labor organization" within the
meaning of the Act, contending that the Advisory Committee serves
merely as "a round table discussion group where all ideas are-freely
discussed" aid as a "channel of communication" between it-and its
employees.
The record shows that, beginning shortly after the Board's August
2 direction of a representation election at the Respondent's plant,
certain employees approached General -Manager Schroeder and, ac-
cording to Schroeder, "asked me my opinion of a committee who would
sit with me to discuss various problems if we did not have a union."
On October 212 by way of a notice posted on the plant bulletin board,
Schroeder notified the employees that an election would be held among
them for the purpose of selecting an Advisory Committee, which was
to consist of an employee representative from each department in the
plant, and which would, according to the posted notice, "serve as a
guide and counsel to management and . . . discuss the administration
of all company policies, grievances, seniority, promotions, insurance,
employee welfare . . . [and] working conditions I . . ." Several
days later, the election referred to in the notice posted by Schroeder
was conducted by the Respondent, and nine departmental representa-
tives were selected by the employees to serve on the Advisory
Committee.
The Advisory Committee and the Respondent met for the first time
on October 20. At that meeting the Respondent made it plain to the
employee representatives that they were "at liberty to discuss anything
they wanted in any form, shape or manner." Since then, as more
fully appears in the Intermediate Report, the Respondent and the
Advisory Committee have met at regular intervals and it wide variety
of subjects affecting the employees' wages, hours, and conditions of
employment have been discussed and considered at these meetings.13
Many of these matters were brought up for discussion by members
of the Advisory Committee acting at the suggestion of. employees
whom they represented.
From all the foregoing, and the entire record, it is clear, and we
and, that the real purpose of the Respondent in establishing the
Advisory Committee was to provide the employees with a substitute
for a bona fide collective bargaining representative, and that, in prac-
tice, however much it lacks independence, and whatever the Respond-
12 As of this date, the representation election had been held and objections thereto filed
by the Respondent and the Union were pending before the Board
13 Typical subjects discussed are the following : Vacations , safety and sanitary conditions,
seniority , working hours , bonuses, and job evaluation.
INDIANA METAL PRODUCTS CORPORATION 1045.
ent's characterization of its role may be, the Advisory Committee has,
functioned as a vehicle for the discussion , consideration , and improve-
ment of the employees ' working conditions. In these circumstances,
we conclude that the Advisory Committee constitutes a labor organ-
ization within the meaning of the Act 14 Accordingly , we adopt the
Trial Examiner 's further finding, to which no exception has been filed
and which is amply supported by the record , that the Respondent
dominated and assisted ,the Advisory Committee in violation of the Act.
-3. We agree with the Trial Examiner that the Respondent also
violated the Act by its discharge of Howard Meyer on April 22, 1950.
The Respondent contends that it did not unlawfully discharge
Meyer. It asserts that the "real " and "immediate" cause for Meyer's
termination was Meyer 's conduct following the removal of John San-
ders' time card on April 22. As "background in the light of which
the events of April 22 . . . are clearer ," the Respondent adverts
to Meyer's employment record with it.15
Like the Trial Examiner , we are not convinced by the explanation
offered by the Respondent for Meyer 's discharge . The incident which
allegedly precipitated the discharge was a completely innocuous oc-
currence . The evidence shows merely that, subsequent to the removal
of Sanders ' card on April 22, Meyer went to the time-card rack to
see whose card was missing , and then spoke briefly to a few fellow
employees before returning to his work . , At best, the entire incident
consumed but a few minutes. Moreover, as pointed out by the Trial
Examiner , Meyer 's conduct in question was "not out of line with shop
practice, " as talking annong -the employees and inspection of the time-
card rack following the removal of a time card were not unusual oc-
currences in the plant before the discharge.,,,
Consideration of the April 22 incident in the light of Meyer's em-
ployment record with the Respondent does not render the discharge
less suspect . As of the time of his discharge , Meyer -had been in
the Respondent's employ for more than 2 years. His work record
during that period is fully outlined in the Intermediate Report. The
credible testimony shows that Meyer's work was not below average in
quality, as the, Respondent sought to prove at the hearing ; that, ex-
cept for a single occasion ,17 the Respondent never complained to Meyer
14Sharples Chemicals , Inc, 100 NLRB 20; General Shoe Corporation, 90 NLRB 1330,
enfd . 192 F . 2d 504 ( C A 0) , Raybestos -Manhattan, Inc, 80 NLRB 1208; Wrought Iron
Range Company, 77 NLRB 487.
15 In its report filed with the Indiana Employment Security Division , dated April 24,
1950, and during its conversation with Meyer on the afore - mentioned date, the Respondent
assigned as a reason for the discharge the fact that Meyer was not satisfied with his job.
It now asserts that factor as part of the "background " in the case "that undoubtedly
influenced the situation on April 22. . "
16 As Supervisor Babarik ' s testimony that "There is more than one that looks at the
cards and all that" indicates , the Respondent was well aware of - this fact.
171a 1949 Mever was told that some feed rolls he had made were not perfect.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the quality of his work; la and that Meyer's alleged dissatisfac-
tion with his job in no way interfered with the performance of the
duties required of him. In our opinion, the "background" evidence,
relied upon by the Respondent serves only to underscore the Trial
Examiner's finding that the April 22 incident was but a pretext for
the discharge.
Pointing up the pretext nature of the reason assigned for the dis-
charge are the following circumstances attending the discharge :
Meyer- received no warning before the discharge, and the decision to
terminate him was made without any consultation with him about
the April 22 incident, even though, as admitted by the Respondent,
Schroeder "had taken a liking to . . . [Meyer] personally" and
"`Meyer was quick to learn and had good potential," and notwith-
standing the fact that employees are not customarily discharged before
the "cause is exhausted very, very carefully."
On the basis of all the foregoing, and for the reasons set forth in
the Intermediate Report, including the Respondent's failure to ad-
vance a persuasive reason for the discharge, the summary nature and
timing of the discharge, the Respondent's knowledge of Meyer's lead-
ing role in the Union's acti-vity,19 and the Respondent's opposition to
the Union, we are convinced and find that Meyer was discharged
because of his support, and activity in behalf, of the Union 20 We
therefore hold, as the Trial Examiner did, that the Respondent thereby
violated Section 8 (a) (3) and 8 (a) (1) of the Act.
4. The Trial Examiner found, however, and we agree, that the com-
plaint should be dismissed insofar as it alleges the-discriminatory dis-
charge of John Sanders on April 22, 1950.
We adopt the Trial Examiner's recommendation in Sanders' case,
although we share his doubts in this matter. And although we do not
19 In so finding, we reject the testimony by Babarik that be complained to Meyer about
his work on several occasions . In our opinion Babarik was, as the Trial Examiner implies,
an incredible witness. Moreover, his testimony in the instant connection was evasive and
unpersuasive.
10 In adopting the Trial Examiner's finding that, as of April 22, the Respondent was
aware of Meyer's union activities, we do not rely , as he did, on the fact that Foreman
Moudy may not have been surprised when , on April 24, employee Carina referred to Meyer's
union activities , or that Moudy may have passed this information on to another foreman
in an "apparently casual way."
20 That the discharge of Meyer was designed to remove from the plant a well-liked but
prominent union figure , at least until the Union's organizational efforts had been defeated,
is indicated by Schroeder ' s suggestion to Meyer shortly after the discharge that he seek
another job and return in 6 or 8 months for a talk concerning further employment with
the Respondent.
Such a finding is not impugned by the fact that two other employees , who manifested an
interest in the Union at the same time that Meyer did, were not discriminated against by
the Respondent , especially since it appears that Meyer was probably the Union's most
active supporter . W. C. Nabors Company 89 NLRB 538, enfd. 196 F. 2d 272 (C. A. 5).
Nor do we attach any significance to the fact that certain of the Respondent's supervisors
who testified at the hearing "belonged to affiliated unions at one time or another ," and, the
further fact that Meyer did not accuse the Respondent of discrimination when he waa
advised of his discharge.
INDIANA METAL PRODUCTS CORPORATION 1047
subscribe in toto to his analysis of the case, the record does reveal a
legitimate basis for Sanders' dismissal on April 22, 1950, when the
decision to discharge Sanders was reached, and we are unable to say,
under all the circumstances of the case, that the preponderance of the
evidence establishes a discriminatory motivation for the action taken
against Sanders."' Most damaging to Sanders' case is his excessively
long record of absences prior to his termination. Indeed, during the
single month immediately preceding his discharge, Sanders was absent
on 5 days, the last absence occurring on the date of the discharge. No
plausible excuse was offered by Sanders for these absences, which took
place during a time when his presence on the job was needed. It also
appears that Sanders was cautioned about his absenteeism before the
discharge and that the Respondent has consistently advanced Sanders'
absenteeism as the reason for the discharge.
Regardless of whether the Respondent may have welcomed an oppor-
tunity to rid itself of Sanders, the decisive consideration here is
whether Sanders would have been discharged because of his absentee-
ism had he not engaged in union activities. On the present record we
are not prepared to hold that such would not have been the case. We
conclude, therefore, that the allegation of the complaint that the Re-
spondent discharged Sanders because of his union activities is not
sustained by the evidence.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Indiana Metal
Products Corporation, Rochester, Indiana, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United Au-
tomobile, Aircraft and Agricultural Implement Workers of America,
C. I. 0., or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Dominating, sponsoring, interfering with, or contributing sup-
port to the Advisory Committee, or any other labor organization,
including any successor to the Advisory Committee.
(c) Recognizing the Advisory Committee, or any successor thereto,
as the representative of any of its employees for the purpose,of dealing
with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment.
n We assume for purposes of this decision that , at the time of the discharge, the Respond-
ent was aware of Sanders' prior union activity , as the Trial Examiner found.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Interrogating or threatening its employees with respect to their
membership in the Union, or instituting benefits to employees, such as
paid holidays or insurance plans, to induce them not to designate the
Union as their collective bargaining representative.
(e) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization,, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Howard Meyer immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(b) Make whole Howard Meyer, in the manner set forth in the
section of the Immediate Report entitled "The Remedy," for any loss
of pay he may have suffered because of the discrimination against him.
(c) Withdraw and withhold all recognition from, and completely
disestablish, the Advisory Committee, or any successor thereof, as
the representative of any of its employees for the purpose of dealing
with the Respondent concerning grievances, labor disputes, wages,
hours of employment, or other conditions of employment.
(d) Upon request, make available to the Board or its agents for
examination and copying, all payroll records,'social security, payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to determine the amount of back pay due and the right
of reinstatement under the terms of this Order.
(e) Post at its plant near Rochester, Indiana, copies of the notice
attached to the Intermediate Report and marked "Appendix B." 22
Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon the receipt thereof,
and be maintained by it for a period of sixty (60) consecutive days
n This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof , the words "Decision and Order." In the event
that this Order is enforced by a decree of the United States Court of Appeals , there shall
be, substituted for the words "Pursuant to a Decision and Order ," the words "Pursuant to
a Decree of the United States Court of-Appeals, Enforcing an Order." -
INDIANA -METAL PRODUCTS CORPORATION - - -1049
thereafter,.in, conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps-shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminated with regard to the hire or tenure, of
employment of John Sanders, be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on May 2, 1950, and an amended charge duly filed
on December 29, 1950,' by International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, C. I. 0., herein called the Union,
the General- Counsel of the National Labor Relations Board,' by the Regional
1)i rector of the Thirteenth Region (Chicago, Illinois), issued his complaint
dated May 11, 1951, against Indiana Metal Products Corporation, Rochester,
Indiana. herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of .the complaint, notice of hearing, charge, and amended charge were
duly served on the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substances :
(1) That since about April 23, 1950, in violation of Section 8 (a) (1) of the Act,
the Respondent had engaged in conduct interfering with employee rights guar-
anteed in Section 7 of the Act in that (a) supervisors had questioned and
-threatened employees with relation to their union activity and (b) the Respond-
ent, at about the time of a Board-ordered election, had granted employee benefits
in the form of paid holidays and a group insurance program; (2) that about
April 24. 1950, the Respondent, in violation of Section 8 (a) (1) and (3), had
discharged John Sanders and Howard Meyer, and has since refused to reinstate
them, because they engaged in concerted activities and joined and assisted the
Union; and (3) that about October 2, 1950, and thereafter, the Respondent, in
violation of section 8 (a) (1) and (2), had initiated, sponsored, interfered with,
dominated, and contributed support to the Advisory Committee, herein called
the Committee.
On May 18, 1950, the Respondent filed its answer, which substantially admitted
the allegations of the complaint with respect to its business operations, but
denied that the Committee was a labor organization and that the Respondent
had engaged in any of the alleged unfair labor practices.
Pursuant to the notice, a hearing was held from June 4, to 13, 1951, inclusive, at
Rochester, Indiana, before me, the undersigned duly designated Trial Examiner.
The General Counsel and the Respondent were represented by counsel and the
1 As shown by return receipts for registered mail, the Respondent received a copy of the
charge on May 5, 1950, and a copy of the amended charge on January 2, 1951.
' The General Counsel and his representative at the hearing will be-called herein the
General Counsel ; the National Labor Relations Board , the Board.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union by International Representatives. All participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the complaint was amended, without objection,
in certain minor respects. A motion by the Respondent, that the alleged inde-
pendent violations of Section 8 (a) (1) contained in paragraph 6 of the com-
plaint be dismissed because neither of the charges contained any mention of
such violations, was denied. A motion by the Respondent for the separation
of witnesses was granted. Upon the conclusion of the evidence, motions were
granted conforming the complaint and the answer to the proof as to formal
matters, and the parties were afforded opportunity to argue orally and to file
briefs or proposed findings of fact and conclusions of law, or both. Oral argu-
ment, which is included in full in the transcript, was presented by the General
Counsel, the Union, and the Respondent.
On July 2, 1951, the General Counsel filed a memorandum concerning only the
8 (a) (2) phase of the case. The Respondent filed, on the same day, a detailed
brief covering all aspects of the instant matter.
In its brief, the Respondent again urges strongly its position, taken at the
opening of the hearing, to the effect that the independent violations of Section 8
(a) (1) alleged in paragraph 6 of the complaint, pertaining to inquiries and
threats by supervisors, and the institution of paid holidays and group insurance,
have no basis in either the charge or the amended charge and hence, in view
of Section 10 (b) of the Act and Section 102.12 (d) of the Board 's Rules and
Regulations, Series 6,a said allegations must be dismissed. It is clear, from an
examination of the charge and of the amended charge, that no mention is made
of the specific types of independent 8 (a) (1) violations alleged in paragraph 6
of the complaint, although each charge does contain the general phrase, "and
by other acts and statements."
It has been the Board's position, however, for reasons set forth in detail in
its decision in the Cathey Lumber case,' that it is not necessary for the charge
to set forth each unfair labor practice to be litigated. And in its decision in the
Rood Manufacturing case,' issued by the Board after the briefs were filed in
the instant matter, the Board, again citing its Cathey Lumber decision, held,
in a situation squarely in point, that violations of Section 8 (a) (1) could be
found concerning surveillance and a unilateral wage increase, although none
of the three charges involved in that case contained any reference to such unfair
labor practices. , In the light of the foregoing, it is my opinion that the ruling
on this matter made at the hearing was the proper one. Since the Respondent
was afforded full opportunity to meet the allegations in question, and since
those allegations were fully litigated, the issues involved will be determined on
the merits.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following : °
a Section 102 12 (d) provides that the charge shall contain a "clear and concise statement
of the facts constituting the alleged unfair labor practices."
4 Cathey Lumber Company, 86 NLRB 157, enfd . 185 F. 2d 1021 (C. A. 5), set aside on
other grounds.
' Wood Manufacturing Company, 95 NLRB 633. See also 1. B. S. Manufacturing Com-
pany, 96 NLRB 1263, and cases cited in footnote 4 therein.
e The transcript in this case is hereby corrected as follows :
Page 187, line 6, the name "Dorson" Is corrected to read "Dorsett."
Page 225, line 14, "It may be error" is corrected to read "It may not be error."
Paaa a07 . Tina 0. tho word "Sunday" is corrected to road "Mandow."
INDIANA METAL PRODUCTS CORPORATION
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1051
Indiana Metal Products Corporation, an Indiana corporation which has its
principal office and manufacturing plant in Rochester, Indiana, is engaged
in the manufacture and sale of screws and metal stampings. In the course of
its manufacturing operations, the Respondent purchases and receives at its
Rochester plant, through instrumentalities of interstate commerce, large quan-
tities of raw materials. During 1950, the value of the raw materials used by
the Respondent was in excess of $75,000, of which value 90 percent was shipped
to its Rochester plant from points outside the State of Indiana. The Respond-
ent's finished products are sold and transported in interstate commerce. During
1950, the value of the Respondent's finished products was in excess of $100,000,
of which value more than 85 percent was shipped by the Respondent from its
Rochester plant to points outside the State of Indiana. The Respondent admits,
and 1-find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America is a labor organization , affiliated with the Congress of
Industrial Organizations . It admits to membership employees of the Respondent.
IH. THE UNFAIR LABOR PRACTICES
A.. The evidence and the issues in perspective
The testimony, particularly with respect to the 8 (a) (3) cases, is flatly con-
tradictory in many respects. By contrast, the facts as to the 8 (a) (2) problem
are relatively undisputed, although the inferences' to be drawn therefrom are
sharply contested. On the whole, I have no doubt that some major witnesses
of both the General Counsel and the Respondent lacked candor in some parts
of their testimony. However, while I do not believe that certain witnesses
can be credited on certain parts of their testimony, I do believe the testimony
of some of them in other respects. Any attempt to detail the conflicting evidence
and to explain all the credibility problems would greatly protract this report.
Hence, evaluations of such matters are presented only where relatively major
questions are involved. Elsewhere findings are based on the weight of the
credible evidence in the record considered as a whole, without detailed dis-
cussion of minor conflicts. In any event, in reaching the findings and conclusions
which follow, I have carefully weighed all of the evidence and have considered
the contentions of the parties as presented both in oral argument and briefs.
A chronological summary of major events will lend perspective to the issues
in this case, all of which arose during the year 1950.' Discussion among the
Respondent's approximately 60 employees concerning organizing a union began
about March. About the first of April, Complainant Sanders contacted a repre-
sentative of the Union. The first meeting, attended by 2 union representatives
and by 4 employees of the Respondent, including Complainants Sanders and
Meyer,' was held on April 8, in the Farm Bureau Hall In Rochester, Indiana,
a city of approximately 4,600 population, from the center of which it is about
Hereafter , that year , 1950 , will usually be omitted in giving dates.
• The other two employees , Lyman Dorson and Dale Peterson , are both still employed by
the Respondent.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4% miles to the Respondent's plant, located in the open country. The 4 employ-
ees present at this first meeting all signed "cards" for membership in the Union.
Following the meeting of April 8, union organizational activities, including
additional meetings at the same hall,' passing out union literature, and signing
up union applicants, were carried on among the Respondent's employees. Sanders
and Meyer were both active in this union organizational work.
On Saturday, April 22, the Respondent decided to discharge three employees,
Complainants Sanders and Meyer and William Hentzlerl° On Monday, April 24,
the Respondent informed Sanders and Meyer. that they had been discharged. .
By letter dated April 26, the Union notified the Respondent that it represented
a majority of the production and maintenance employees at its Rochester plant. .
and requested a meeting to discuss recognition and an agreement. On April 27,
the Union filed a petition for certification in Case No. 13-RC-1270. The Re-
spondent, by letter dated April 28, informed the Union that a meeting would,
be a waste of time since the Respondent did not believe that the Union repre-,
sented a majority. On May 2 the Union filed its original charge alleging
violation of Section 8 (a) (3) because of three discharges, and of 8 (a) (1)
by virtue thereof and by "other acts and statements." On May 23, a representa-
tion hearing was held in Case No. 13-RC-1270.
During the late spring and the summer 'of 1950 the Union distributed litera-
ture among the 'Respondent's employees advocating its contentions. During
this same period, the Respondent, by various letters in part summarized below,
made known to its employees its strong opposition to the Union. On June 20
the Respondent posted a notice announcing details of a policy, to become effective
July 1, of paying its employees for 6 holidays a. year. Under date of July 14,
the Respondent sent a personal letter to each of its nonsalaried employees,'
to which was attached a check as "your holiday pay for July 4th." On July 25
the Respondent posted a notice that it had signed a contract that day pro-
viding for insurance benefits for employees and their dependents. This program
was put into effect on August 10.
On August 2 the Board issued its Decision and Direction of Election in the
representation case." In 'the election pursuant thereto, which was held on
August 23, the approximately 64 eligible voters cast 64 ballots'. Of the ballots
cast, 1 was void, 5 were challenged, and 29 were cast for and 29 against the,
Union. The Respondent on August 28, and the Union on August 30, filed
timely objections to the election; no new election has since been held'3 In
the meantime, the issue of the Committee has come into the picture. On
October 2, 1950, the Respondent, by its general manager, N. F. Schroder, posted
on its plant bulletin board a notice to all employees, asking them to elect the.
Committee. Shortly after and pursuant to that posted notice, the Committee
9 The second meeting was held on Saturday, April 15, and was attended by 8 to 12
employees. The third meeting, attended by 10 to 14 employees, was held on Saturday,
April 22 It is evident from posters introduced in evidence by the Respondent that the
Union held various other meetings thereafter.
10 Hentzler, whose discharge, like'that of Sanders, is ascribed to "absenteeism" by the
Respondent, was included in the Union 's original charge but dropped from its amended
charge.
11 Salaried employees had previously been receiving pay for holidays.
12 90 NLRB No. 206. II
1' It should be noted that the Regional Director has since issued his report on objections
on March 12, 1951, sustaining objections by both parties and recommending a new
election It should further be noted that the Board, in Its Supplemental Decision of
March 30, 1951 , adopted the Regional Director ' s recommendations, to which no exceptions
had been filed , and directed a second election , to be conducted on a date to be determined
by the Regional Director.
INDIANA METAL PRODUCTS CORPORATION 1053
was elected and began to function. It has since continued to hold periodic
meetings. On December 29 the Union amended its charge to include a violation
of Section 8 (a) (2) as to the Committee.
After carefully studying the evidence and all of the contentions of the parties,
I believe that my determinations in this matter can best be presented if set
forth in approximately inverse chronological order. This is true in no small
part because, in general, the earlier in sequence a given issue appears, the
more flatly contradictory is the evidence concerning it. Hence, the presentation
which follows begins with the most recent, and factually the least controverted
problem, the Committee; proceeds to the alleged independent violations of
Section 8 (a) (1) ; and concludes with the most controverted matters, those
surrounding the discharges of Sanders and Meyer. We turn now to a considera-
tion of the Committee.
B. The Advisory Committee
1. The establishment of the Committee
Whatever prior discussion General Manager Schroeder may have had with any
employees of the Respondent, the record leaves no doubt that the initial action
in forming the Committee was the posting by Schroeder on the plant bulletin
board on Oetobei 2, 1950, of a notice to all employees, which notice is set out in
frill as Appendix A, and which, on its face, is devoid of any indication that the
idea originated with anyone other than management." It is clear from the notice
that employees were not being asked to decide whether or not they wanted such
a committee On the contrary, they were being told how, when, and why the
Advisory Committee was being formed; when they would be furnished their
ballots; by what departments they would vote for representatives who would
"represent your best interests;" and the time and frequency of meetings and the
subjects to be discussed. It is particularly noteworthy that, according to para-
graph 6 of the notice, the Committee was to "serve as a guide and counsel to
management and will discuss the administration," among other things, of griev-
ances, seniority, prom-otion,s, insurance, and working conditions.
On October 6 the election provided for in the notice of October 2 was held in
the plant. The ballots were worded by Schroeder and prepared and attached to
"Schroeder , whose testimony , in conjunction with uncontested documentary evidence,
constitutes most of the evidence concerning the Committee, testified :
Shortly after the announcement by the NLRB that an election for union representa-
tion was to be held at Indiana Metal, at various intervals employees asked me my
opinion of a committee who would sit with me to discuss various problems if we did
not have a union.
Schroeder also testified that he had talked about the idea with some 12 employees over
a period extending from the latter part of May to the latter part of September 1950.
However, despite Schroeder's apparently good memory for details on most points and his
admitted ability to call all of the small staff of employees by name, he could name only
two individuals with whom he had talked on the subject , a foreman , George Babarik, and
an employee, Bill Carini, the heat treat man in the toolroom According to Schroeder,
Carini had contacted Mill three times, and it was not until Carini's last contact , the latter
part of September, that Schroeder finally consented to consider the idea which, according
to Schroeder, Carini told him lie had discussed "with peope in the toolroom without having
identified them, and they liked the idea." It should be noted that the toolroom, in which
Complainants Sanders and Meyer were employed before being discharged, was the depart-
ment employing three of the first four employees to join the Union It should also be noted
that Schroeder testified that he ultimately discussed the idea of a committee with his
"foremen's group" ; that they "thought it was a very good idea" ; and that from their
conversation n ith employees "it appeared to them like the employees would like a committee
of that kind." - - - -
1054 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
each employee's time card by Schroeder's secretary. There had been no nomi-.
nations, the ballot containing a blank for each employee to write in the name of
his choice for his department's representative. Employees were permitted to
vote during working hours without loss of pay, depositing their ballots in the
plant suggestion box located by the time clock. A total of 77 employees, including
the foremen, who also voted for the representative of their foremen's group on
the Committee, voted in the election.
The ballots were counted in the plant during working hours without loss of
pay by two nonsupervisory employees who gave their tally of the ballots to
Schroeder. Schroeder thereafter posted, over his signature, a notice, dated
October 10, which gave the election results. The notice set out the names of the
seven representatives elected in seven departments where there had been tie
votes. The next day, the runoff election was held in the same manner as the
original election, and Schroeder wrote in on the notice the names of the two
departmental representatives who had been elected in the runoff. Each of the
nine committeemen elected thereafter accepted when congratulated by Schroeder
on his election.
2. The functioning of the Committee
The Committee began to function with its first meeting on October 20, 1950,
and has since held meetings about every 2 weeks, although some of the earlier
meetings were only a week apart. All of the meetings have been held in Schroed-
er's office, and he has been present at and has served informally as chairman of
all meetings. The Committee's meetings are posted over Schroeder's signature
on a schedule of meetings on the plant bulletin board, the schedule in evidence
being for a 6-month period and including also the schedule for "Foremen's Meet-
ings" and "Foremen Training Conference." Employee representatives have
been paid for their attendance at meetings which customarily begin about 3: 30
p. m., at the time of the change between the first and second shifts, and usually
last about 11/2 hours, although some meetings have been longer.
Schroeder explained at the outset of the first meeting that Committee members
were "at liberty to discuss anything they wanted in any form, shape or manner."
Carl Bietz, the Respondent's superintendent and next in authority to Schroeder,
whom Schroeder had appointed as a permanent member of the Committee, acted
as the secretary and -signed the minutes of the first five meetings." Thereafter,
although Bietz continued to attend all meetings which -he could, Schroeder's
secretary, Barbara Carlson, served as secretary and signed the minutes. The
minutes of all meetings are edited by Schroeder, who checks where necessary
with committeemen. The minutes are then put in final form and duplicated by
Carlson, who is paid for all of her time spent on the minutes. One copy of the
minutes for each meeting is then given to each committeeman, and an additional
copy is also posted on the plant bulletin board where these minutes accumulate
and are thus available to all employees.
The Committee has no officers, other than the informally assumed chairmanship
of Schroeder, and the appointed secretary, whose signature appears on the
minutes. It has no written constitution or bylaws and receives no dues from
employees. While it does not conduct meetings of the employees, employees may
appear individually before and discuss matters with the Committee, and Schroeder
conducts employee meetings on subjects discussed by the Committee. The Com-
mittee's' relatively nominal running expenses are clearly all met by the Respond-
ent. It has no treasury of its own. However, the Committee has taken over the
administration of the income from the vending machines in the plant which-sell -
15 The witness shown In the transcript as Carl Bietz Is the same Individual who appears
In the minutes as Karl Beitz.
INDIANA METAL PRODUCTS CORPORATION 1055
cokes, candy, and milk, and the bank account in which those funds are kept is
apparently under the control of the Committee. The income from these machines
-«as formerly used by'the-Welfare Fund in connection with an annual employee
picnic and to pay for the vending machines. The income from these machines
now evidently is used entirely to help. upon the Committee's approval, worthy
employees who are in need because of an emergency. The Committee also has
taken over the responsibility for investigating the merit of employee suggestions
and for making cash awards for suggestions deemed meritorious, the funds
awarded being furnished by the Respondent.
3. Some matters considered by the Committee
It is clear from the testimony and the minutes of the meetings that the Com-
mittee, as contemplated by the notice of October 2, has considered a wide range
of subjects. For instance, John Sheetz, the elected member of the Committee
from the thread rolling department, which contains about 16 or 18 employees,
testified that he could "bring up for discussion anything" that he wanted to
discuss at the meetings, that employees in his department had discussed the
Committee's meetings with him and had suggested subjects for him to bring up;
and that he had brought up subjects they suggested. Among these subjects
which he had brought up at meetings, upon request by employees in his depart-
ment, Sheetz enumerated the following : conditions involving safety factors ;
the need for placing signs on the highway to identify the factory entrance;
the repairing of a leaky roof ; improving sanitary conditions in the rest rooms ;
crowded conditions in the thread rolling department due to lack of storage space
and extensive truck traffic through the department ; and the desirability of
permitting employees to take one Saturday a month off for personal reasons."
That numerous matters pertaining to conditions of employment were con-
sidered by the Advisory Committee is abundantly clear from the minutes in
evidence, which it has been Manager Schroeder's practice to edit. While illus-
trations could be multiplied many times, if examples were to be taken from the
minutes from each of the 16 meetings in evidence, the following verbatim quota-
tions, constituting the major portion of the minutes of the first meeting on
October 20, will suffice to indicate the nature of employee interests considered
at these meetings : "
Ester Brooks opened the meeting with a question on the new stools for
the press department. The original supplier of this stool is no longer in
business and our order was returned to us. Consequently, it will have to be
replaced Mr. Bietz is to check with the girls on their wishes on stool
design and the order will be placed with another supplier this week.
Bob Lancaster asked about Company policy relative to maintenance of
insurance in case of lay-off.
A question arose relative to computing pay in view of bonuses, shift
differential and overtime. Sample John Doe time cards were given to
'" Although there is some dispute, particuarly with reference to Sanders' discharge, as
to whether the plant usually worked on Saturdays , the weight of the evidence overwhelm.
ingly shows that the plant normally operated 6 days a week during all times herein
material.
" The minutes of the 16 meetings in evidence extended through May 10, 1951 . They are
single spaced on letter sized paper and cover 29 pages. My study of these minutes satisfied
me that there has been no substantial change in the nature of the matters considered by the
Committee. Except for Schroeder and Bietz , who have already been identified, a fore-
man, Howton, and McKee, the office manager , the names appearing in the quoted minutes
are those of employee representatives.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bob Lancaster and John Sheetz so that they could discuss with their
fellow workers the method of computing pay.
A discussion followed on issuing pay checks every week rather than every
two weeks. .
At this point, Mr. McKee was asked to come into the meeting and explain
to the committee what a weekly payroll involved in the way of office proce-
dure and cost.
His summary indicated that it would be necessary for the company to add
another full time employee just to figure payroll. After considerable dis-
cussion, it was agreed by the committee that the company should not be
required to assume this additional expense and each committee member
would relay to the people in their departments this conclusion.
Ester Brooks asked that a check be made on a piece work staking rate on
Part #3688250. Mr. Schroeder agreed to re-time study this operation the
next time it is being run.
* * * * * * *
John Sheetz called attention to the unsanitary condition of the wash-
rooms and porcelain ware in the factory. Mr. Bietz and Mr. Schroeder
agreed to personally contact the janitor to eliminate this condition as quickly
as possible. The Committee was advised to keep careful watch over this
condition and call to management's attention any deviation from good
housekeeping and safety practices.
* * * *
A complaint was registered regarding some employees who use tobacco
and spitting on the floor. After some discussion, Mr. Bietz was requested
to purchase or have made 12 steel boxes, 3Y2" x 12" x 12", painted white,
filled with sawdust, and located at convenient locations throughout the
plant for use as cuspidors.
Al Tharp brought up the question of a distributive bonus for the tool room
pro-rated on the header bonus and production. It was his opinion that the
tool room contributes to the efficiency of the header department because of
their tool production.
No specific plan could be devised at once and it was temporarily tabled
so that management could give further consideration to a practical, fair, and
equitable bonus plan.
It was further suggested that a blower be installed on the surface grinder
in,the tool room. Mr. Bietz is to check into this blower with Mr. Howton
to design and install a satisfactory blower.
Ben Severns suggested that some safety device be installed on the Cold
Headers to prevent the tail end of the coil of wire from flying around the
reels as the coil is being cut up.
No specific decision was arrived at and the committee agreed to give
further thought to a practical device that will eliminate this hazard.
Bob Lancaster inquired about assistance for one of our less fortunate.
fellow workers on a cash basis to be taken out of the Employees' Welfare
Fund.
In view of the uncertainty of the immediate problem of this employee it
was agreed to withhold action until next week's meeting at which time it was
felt the committee would have more information as to exact status and pos-
sible needs of the party involved.
Ester Brooks raised the point of the welfare fund being used to give as a
token of remembrance, a cash gift to men who will necessarily leave their
employment for the armed forces.
INDIANA METAL PRODUCTS CORPORATION 1057
It, was Mr. Schroeder's opinion that this fund be earmarked for more
,constructive uses and be used only in cases of employees and welfare need.
After some discussion, Mr. Schroeder proposed that the company give
each service man at the time of his departure, a check in the amount of
$25.00. The committee agreed to this proposal and the welfare fund will be
retained exclusively for employees and welfare assistance.
Some discussion followed regarding insurance premiums for servicemen
and the company's policy was clarified as follows :
The company will maintain all insurance premiums for the dependents
of men going into service for the duration of the time so spent.
The minutes of subsequent meetings of the Committee and the testimony of
Manager Schroeder are replete with other examples of employee interests which
were considered by the Committee. A few will be summarized as illustrative.
For example, as to the vacation period, the subject of discussion at several meet-
ings, the minutes of the March 29, 1951, meeting contain the following:
Another discussion concerned the vacation period, which now extends from
July 1 through July 8. It was suggested that the employees have an 8 day
vacation since July 4th carne during the vacation week. It was also sug-
gested that the vacation week be changed to a different week entirely.
Nothing definite was decided and the matter will be held over until the next
meeting awaiting opinions from the other employees.
The vacation period was thereafter disposed of when the Committee agreed on
the following solution, as shown by the minutes for April 13, 1951:
After a thorough discussion of the Vacation period, it was agreed that the
vacation period will be July 1st through July 8th. Operations will cease
at midnight on June 30th and will resume at midnight on July 8th. All em-
ployees on the payroll for 12 consecutive months preceding June 30, 1951,
are eligible for one week's paid vacation.
Discussion concerning running the plant during the vacation week to
accommodate those people who are not eligible followed, and it was agreed
,that the Superintendent would make inquiry among the eligible people to
determine whether or not it would be practical to run the production depart-
ments. If enough people are interested in working during the vacation
period, the plant will run one shift. The operation of one shift during the
vacation will be predicated upon availability of raw materials at that time.
One question noted above which Representative Sheetz raised upon request
of employees in his department, namely, that of permitting employees to have
one Saturday off a month for personal reasons, was discussed- at several meet-
ings. The March 14, 1951, minutes show :
It was agreed by the committee that a vote will be taken in regard to taking
one Saturday off every month. It was agreed that the plant will shut down
the'second Saturday of every month, if a majority of the employees so vote.
The question is whether or not to do this during the months of June, July
and August; April, May, June, July, August & September; or every months
throughout the year. A vote will be taken in the near future.
A vote was taken on March 19, which presented four choices, the three alterna-
tives listed in the above minutes and no Saturdays off. The results were con-
sidered inconclusive, as no one choice received a majority vote.18 Following this
ballot the minutes for March 29 show the following concerning Saturdays off:
18 The 3 different proposals for Saturday shutdowns received a total of 38 votes, no
Saturday off, a vote of 36.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The committee agreed to rescind on the original proposal and balloting
covering time off on Saturdays. A new proposal is under discussion and
each employee should contact his committeeman to express his opinion on
the last proposal.19 A decision will be reached at the next regular meeting
which will then become the effective policy.
At the next meeting on April 13, the minutes show that the following "disposi-
tion of the original proposal," which became "the effective policy" which has
since been followed, was made by the Committee :
Saturdays will be taken off with permission of the foreman or Supervisor,
and permission will be granted as long as the employee's absence will not
jeopardize the operation of the department, or work any hardship on any
other employee. One Saturday per month under this arrangement will be
granted for personal reasons. More than one Saturday will be granted only
in extreme emergencies. -
The question of weekly rather than biweekly pay checks, raised at the first
meeting, was not disposed of by the explanation at that meeting that it would
require another full-time employee. In fact, as Schroeder testified , they "threw
that around for several weeks" so that the committee members could ,explain to
the people in their departments who proposed it that it would mean "an additional
expense," but the committeemen "reported back they thought the majority was
in favor of having weekly pay checks." An election was then conducted among
the employees, and "the results of the voting which had been requested by the
committee," 20 which were posted on November 18, 1950, by Schroeder, showed 40
employees in favor of being paid every week while 29 favored payment every
2 weeks. In December, the Respondent "hired a girl" and "the first weekly
distribution of pay checks" took place in January 1951.
It appears from the minutes and the testimony that numerous other matters,
including seniority among women employees in one department, the enlargement
of the cafeteria in preference to a women's lounge, changing the hours of the
third shift, pay increases based on the cost of living index, and a detailed system
of job evaluation,2' were considered at various times and with varying results by
the Committee. Such additional matters are not discussed herein, because what
has already been detailed sufficiently illustrates the nature of the Committee's
functions. Hence, without elaboration of other matters which have been care-
fully considered, my conclusions as to the basic contentions of the parties about
the Committee are now presented.
4. Conclusions as to the Committee
The evidence abundantly demonstrates, contrary to the Respondent's conten-
tion, that the Committee is a labor organization within the broad meaning of the
Act.22 While it is doubtful that any substantial number of employees took part
"It should be remembered that the minutes of all meetings are posted and are thus
available to all employees.
20 The above quotations from Schroeder's testimony do not support the contention in the
Respondent 's brief that the "Committee didn't enter into the picture at all " with respect
to this change.
21 This Job evaluation of all positions in the plant was made by a group of five individ-
uals, two of whom were elected by the Committee and two of whom represented manage-
ment. The fifth member of the evaluation group was an outside industrial engineer.
22 For the definition of a "labor organization ," see Section 2 (5) of the Act. Compare
the facts in the following cases with those in the case at bar: Knickerbocker Plastic Co.,
Inc., 96 NLRB 586 ; Florida Telephone Corporation , 88 NLRB 1429 ; Raybestoa -Manhattan,
Inc., 80 NLRB 1208 ; Wrought Iron Range Company , 77 NLRB 487 ; and Rogers Hydraulic,
Inc., 51 NLRB 417.
INDIANA' METAL PRODUCTS CORPORATION 1059
in formulating the idea of having the Committee," all of the employees were
eligible to participate in the election of their departmental representatives and
substantially all of them did. Since the Committee's establishment, employees
have participated in various ways, such as by consulting with their represent-
atives as to matters to be considered by the Committee, and by expressing their
wishes, either personally or by ballot, on matters under consideration by the
Committee. Employees have also participated by receiving for their consideration
reports of the deliberations and actions of the Committee, both through the
posted minutes of the Committee and oral discussion with their representatives.
In addition, the posted notice of October 2, which established the structure and
functions of the Committee, provides for recall of any representative "if a
majority in a department feel that he or she is not serving everyone's best inter-
est," a clear provision for further employee participation.
It is equally clear from the facts established by the evidence that a very sub-
stantial part of the Committee's activities have concerned matters falling within
the general area of self-organization envisioned by the Act. The illustrations
set out above clearly demonstrate this, as ilo several other matters discussed in
oral argument and briefs. It is immaterial that some subjects considered by
the Committee may fall outside the usual ambit of labor organizations." This
is especially so since the notice of October 2, creating the Committee, specifically
provided that the Committee's scope would include, among other things, griev-
ances, seniority, promotions, insurance, and working conditions, all unmistakably
within the field of collective bargaining as interpreted in innumerable Board
decisions.
Nor does it matter that the Respondent has signed no agreement with the
Committee, for it is patent that the Committee itself is an agency or plan, having
its organizational structure rooted in the specific provisions set out in Schroeder's
notice of October.2, whereby management, through its representatives on the
Committee, is able to deal, problem by problem, with its employees, through their
representatives on the Committee. And it is highly, significant that the minutes
of the Committee's meetings, edited by Schroeder and posted for all employees
to see, repeatedly contain details as to matters clearly within the scope of a labor
organization, concerning which the Committee had agreed, to use the language
of the minutes themselves, upon stated actions and policies.
Upon careful consideration of all the evidence, I am satisfied and find that
the total impact of the Committee's actual establishment and functioning, espe-
cially-in-view of the pendency of the representation proceeding, has been to hold
out to the Respondent's employees the Committee as the equivalent of a labor
organization by means of which they may deal with the Respondent, through
their, chosen representatives, to reach understandings or agreements on all mat-
ters of vital interest,pertaining to conditions of employ ment. In my opinion,
the'Committee, has not been, as the Respondent contends, merely a channel of
communication.
That the Respondent initiated, sponsored, interfered with, and contributed
support'' to the Committee, is obvious from a study of the facts detailed above
in section III, B, 1 and 2 of this report. It is equally clear, when all of the
See footnote 14, supra At most, Schroeder claimed to have talked about the idea with
some 12 employees ; I consider it unlikely that he talked with even that many.
24 I do not deem it material for decision of the issues presently presented to determine
whether or not certain matters actually considered by the Committee may properly fall,
under some circumstances , within the scope of collective bargaining . See paragraph 6 of
Appendix A.
26 As to the Respondent's violation in contributing support through the vending machine
funds, see Majestic Metal Specialties, Inc., 92 NLRB 1854.
227260-53-vol. 100-68
1060 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
,facets of the extent and nature of the conduct presented in the foregoing-Section
are considered in their interrelationship, that the Committee has been so com-
pletely the creature of the Respondent that a finding of its domination, thus
requiring an order of its disestablishment, is also fully warranted.
In view of all the foregoing, and upon the record as a whole, I find that the
Respondent, in violation of Section 8 (a) (1)•and (2) of the Act, has initiated,
sponsored, interfered with, and contributed support to the Advisory -Committee
and that, by the totality of its conduct, the Respondent has dominated said
Committee.
C. The "independent" 8 (a) (1) violations
1. Paid holidays and group insurance
The summary appearing in section III, A, places the two matters now to be
considered, the Respondent's institution of paid holidays and group insurance,
in chronological sequence. It should be noted that both actions took place in
the summer of 1950. The Respondent posted an announcement of its decision to
grant its employees 6 paid holidays on June 20, 4 months before the first meet-
ing of the Committee, and slightly less than a month after the representation
hearing of May 23. The Respondent's insurance program, announced in it notice
posted on July 25, actually became effective on August 10. Thus these two sub-
stantially favorable changes in conditions of employment had been given to its
employees by the Respondent not long before the election held on August 23,
which had been directed by the Board in its decision of August Before con-
sidering whether either of these two actions, which the General Counsel attacks
primarily because of their timing and the Respondent's attitude toward the
Union, constitutes a violation of Section 8 (a) (1) of the Act, it is necessary to
examine in more detail just how these benefits were instituted and what atti-
tude the Respondent was simultaneously expressing toward the Union during
the election campaign. _
On May 26, 3 days after the representation hearing, the Respondent sent each
of its production and maintenance- employees a two-page personal letter,' with
which was enclosed a one-page photostat of a two-column article reporting the
decision of the American Hardware Corporation to discontinue the operations
of its Corbin screw division at New Britain, Connecticut, because an analysis of
the financial history of the screw division showed that "except during war periods,
profitable operations were for the most part the exception rather than the rule." '
28 The Carpenters Steel Company, 76 NLRB 670 , 673 ; see also The Fifteenth Annual
Report ( NLRB-1950 ), page 101 . That the Committee has not always followed, the
Respondent ' s lead does not alter the situation under all of the circumstances here involved.
27 The illustration in evidence is on the Respondent 's letterhead ; Is an original typed
better ; addresses employee Collin Smith as "Dear Collin" ; and bears In ink the signature
"Norb," above the typed name of N. F. Schroeder , whose first name is Norbert. Other
letters discussed below are similar personal letters. It should be noted that nothing in
any of these letters of the Respondent to its employees about the Union is advanced by the
General Counsel as violative of Section 8 (a) (1) of the Act, per se. All such letters,
whether introduced In evidence by the General Counsel or the Respondent, were received as
part of the background.
28 It should be noted that while this article, in analyzing the "millstone " like financial
position of the screw division with respect to three other divisions of American Hardware,
points to "chaotic price conditions in the screw industry whose production facilities are far
in excess of the demand ," no mention is made in the article of any union . This article,
which is not identified as to the publication In which it appeared , closes with a statement
by the president of American Hardware - that every effort would be made to transfer
employees of the screw division to the other three divisions.
11
INDIANA METAL PRODUCTS CORPORATION 1061
Schroeder's letter opened with the following three paragraphs:
As you know, the C. I. O. has been working on us-putting pressure on
our people to get tied up with the union. The N. L. R. B. hearing for certifica-
tion of election was held in Rochester on Tuesday, May 23, and all testimony
is now in the hands of the Washington N. L. R. B. office We will be advised
by them whether or not and when an election is to be held -
There is no use kidding anyone. The situation really has me worried.
Our whole struggle for existence is threatened.
It is no secret that our company history has been one of uphill battle.
From a definite failing position we have slowly' worked our way forward.
You and the rest of the gang have fought magnificently to help us succeed.
It has been nip and tuck, but together we have inched our way ahead.
The five paragraphs of the letter which then follow are devoted to explaining
how the Union was not "interested in our people" but wanted "to throw a crush-
ing burden upon us" and did not "care whether we stay in business or not." In
explaining why he was ,worried about his own job and "your job and the other
79 people and their jobs," Schroeder pointed out that the screw business was
"very competitive ; that several well-known manufacturers, including Corbin
screw which had been in business for over 60 years, had gone bankrupt and out
of business recently ; that the union 29 had not helped Corbin get higher prices
or capital for raw material and machinery ; and that many of Corbin's 800 em-
ployees had been forced "to go on relief" or "to go to distant communities to seek
employment." The third of these five paragraphs reads :
I would like to stay here and continue to provide jobs for our people. We
would like to build up better conditions for everyone of us. I think it can
be done. The way we have been going, there is a good chance that we can
get our heads above water.
The four closing paragraphs of Schroeder's letter of May 26, thanked the
employees for "the faithful work you have done" ; solicited their "continued
support" which was needed "more than we can tell you" ; expressed the hope
that employees would not hesitate to come to him with any questions ; indicated
that to join or not to join "a labor movement was their privilege" ; a0 and stated
as a separate paragraph:
Our one salvation is to stick together-and to fight for the very life of our
jobs.
A notice to the Respondent's employees captioned "PAID HOLIDAYS" was
posted in the plant on June 20, about 2 or 3 days after Schroeder had discussed
m There is no indication in the record as to what union may have been involved in the
Corbin situation.
"The letter on this point read : -
To join a labor movement is your privilege. It is also your privilege not to join, and
you will not, under any circumstances, ever be forced to join any union unless you
choose to of your own free will.
On June 13, a three-paragraph notice to all employees, posted on the plant bulletin board
by Schroeder, reiterated that "no one, under any circumstances, will ever be required to
join a union ." This notice closed with the following paragraph :
Whether or not you join a union is your constitutional right and we will protect
that right of every employee. This means that we will protect your right not to join
in the same degree that we will protect your right to join . ( Emphasis in original.)
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject with the employees at a meeting in the plant " To insure that "all
are fully familiar with our policy of allowing paid holidays," the notice explained
that, effective July 1. 1950, six holidays, Fourth of July, Labor Day, Thanks-
giving, Christmas, New Year's, and Memorial Day, would be paid for at the
average earned rate of 8 hours. This notice also set out in considerable detail
various provisions governing payment for these six holidays.
On June 20, the Respondent posted and also mailed to the home of each
employee a copy of an additional one-page notice captioned "PAID HOLIDAYS."
This additional announcement, which summarized the provisions governing
paid holidays in less detail than the notice above discussed, opened with the
following statement :
We are happy indeed to effect our new policy of paid holidays for everyone.
This, as you know, is made possible as the result of our increasingly better
performance and progress in the past few months.
It will also be your company's policy to share progress with you in the
form of wages, benefits, and better working conditions.
We are confident that your continued good cooperation will enable us to go
forward together, and effect further benefits and new policies.
The first payment to the Respondent's employees under this new holiday
policy was for the Fourth of July, and each check was accompanied by a
personal letter dated July 14, 1950. Such personal letters were sent to all
employees except salaried employee's. These letters read as follows :
This check, attached, is your holiday pay for July 4th.
It is a real pleasure for us to be able to make this payment to you. We
hope this has added to your enjoyment of the day.
Our next paid holiday will be Labor Day, and everyone will again receive
a pay check for this day, who has worked a full day preceding and following
the holiday.
On July 25, a few days after the subject had been discussed at a meeting of
employees held in the plant;' the Respondent posted a notice on the plant
bulletin board announcing that it had that same day signed a contract with the
Prudential Insurance Company of America covering employees and dependents
with the following types of insurance :
Employees Dependen is
Life Insurance Hospitalization
Health and Accident Surgical
Accidental Death and Dismember-
ment
Hospitalization
Surgical
31 The employees were paid for time spent in attendance at that meeting and also for
attendance at a similar meeting , held in July , a few days before the posting of the notice on
July 25, discussed below, concerning group insurance. Both meetings were held between
the first and the second shifts ; the first meeting lasted about 50 minutes and the second
meeting about 11/2 hours . There is no evidence that the Union was mentioned at either
of these meetings In may opinion, the documentary evidence surrounding the announce-
ment of these two policies covers all that is material for a determination of the issues
here involved , and Schroeder 's testimony concerning what was said at the two meetings
is not in conflict with this documentary evidence.
83 Salaried office employees and supervisors on salary had previously been receiving pay
for holidays.
as See footnote 31, supra.
INDIANA `METAL PRODUCTS CORPORATION 1063
This notice also stated that employees would receive a letter and literature
detailing the program and that a representative of the insurance company would
be in the plant "to interview each one personally."
During the latter part of July, sometime shortly after the above notice was
posted, a one-page letter from Schroeder addressed "To Our Fellow Workers,"
and accompanied by a three-page single-space document entitled "SCHEDULE
OF INSURANCE," was mailed to the home of each employee. Schroeder' s letter
opened by stating that group insurance had been under investigation since the
beginning of October 1948." The letter then explains that after "much delibera-
tion and weighing of merits of different plans," Prudential 's plan had been
chosen because it "fits the needs of our people;" that to make the insurance
effective "at least 75% of our employees must enroll ;" and that to keep the
cost "within the reach of all of our employees," the Respondent would " assume
fifty percent of the actual cost of the insurance, as well as the cost of admin-
istration, collection, and accounting " This letter closes with the following
paragraph :
One of the great values in this program is the peace of mind and increased
feeling of security that this protection can bring. It is one of the benefits
that your good work is making possible. As discussed with you many times
in the past, it is our aim to keep moving forward, hitting the ball as we are
doing together, and winning more good things as we go.
The schedule of insurance which was enclosed explained the various benefits in
detail and indicated that the monthly contribution of each employee would fall
into one of four categories, ranging from as little as $1.88 for a single employee,
to a maximum of $3.66 for an employee with a wife and children.'
On August 10, after three of Prudential's representatives had interviewed the
employees in the plant," Schroeder posted a notice announcing that "97% of all
eligible employees accepted the insurance program," and that accordingly "all
benefits and protections become effective today." This notice closed as follows :
This is another milestone in our working together, made possible by our
splendid cooperation, of which all of us can be proud
As above noted, the Board's decision in the representation case, directing an
election on August 23, was issued on August 2. After announcing on August 10
that its group insurance program was going into effect as of August 10, the
Respondent mailed personal, two-page letters, dated August 15, to all employee
voters in the appropriate unit. These letters opened by pointing out that there
would be "an election next week" and stated the date and hours thereof. In dis-
cussing the appeals for support being made by the Union, these letters from
Schroeder stated :
34A notice to employees dated October 12, 1948 , stated that consideration had been
given for several months to securing insurance for employees on an expense-sharing basis.
It stated that five "outstanding carriers" had submitted proposals . It also requested
employees to indicate their approval or disapproval of such insurance, for which the com-
pany would bear approximately half the cost . A check mark indicating approval appears
by 44 of the names of the 56 employees listed on this notice. It appears that the proposal
for group insurance in October 1948 originated with the Respondent rather than with the
employees.
15 It should be noted that no mention is made anywhere , either in the covering letter or
in this schedule of benefits , of those factors , discussed below , to secure which the
Respondent attributes its delay in the institution of its group insurance plan
' It 'tdok these three representatives about 12 hours to interview approximately 96
employees These relatively brief intervies s resulted in no loss of pay to the employees.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The C. I. O. tells a great story about the shiny side of its wares It speaks
of high wages, vacation pay, holiday you, job security. and insurance benefits.
[Emphasis supplied.] " These are all good things, and we have them here
right now. Besides, we are working to make them still better.
In discussing "the mean and sad side" of the story, Schroeder pointed out that
the C. I. O. brought "strikes and strife, arguments and ill-will" and that the
C. I. O. made "TROUBLE" and "set people against one another " i chroeder's
letters of August 15 concluded with the following two paragraphs :
Don't you feel in your heart that we can work out our problems and make
our own headway without all the shouting and disruption that the union
brings with it? I really hope so I think we can actually hal e fun and enjoy
pulling together and continue getting all the good things this business can
give us-without a strike and without the mean, hard feelings that unions
bring in.
I hope that you will vote NO on election day, Bob. You will vote the way
your conscience tells you-that is your God given right. And neither I nor
the union will ever know how you personally voted All I can say is I hope
you will help us stay out of the union, because 1 know we will all he happier
and more prosperous without them.
On the day of the election, which was held in the plant warehouse from 3 to 4
o'clock on the afternoon of August 23, the Respondent's employees were given a
four-page personal letter from Schroeder wfiich opened. "This is important!
Take time to read it now ! ' These letters were handed to the employees at the
plant personally by their supervisors To these letters were attached sample
ballots, marked with an "Y" to indicate a vote against the Union, and bearing
the legends "Be Sure to Vote!" "Vote Right": and "Vote NO." In pressing his
case against the Union. Schroeder discussed under 11 headings the progress which
had been made by the Respondent "without a strike and without it union, by
working together " Under the fourth heading, "PAII) HOLIDAYS." the follow-
ing appears:
We have (i paid holidays. This is just one item in the progress that we
are making together. And if a holiday falls on a Sunday, we pay you for it
just the same, whereas other companies frequently do not.
While no such caption as group insurance is used in the letter, the following
paragraph appears under the caption "JOB SECURITY" :
The essence of security boils down to our cooperation, in pulling together.
as one team for the good of all. Our manareinent, through and through, is
determined that everyone of as shall continue to In ', e e^ ery phase of job
security. The union can not add a single thing to our security.
Schroeder's letter of -August 23, which urged the case for voting against the,
Union inconsiderable detail, concluded with the following paragraph:
Today the election gives you a chance to say what you think about all
these things Let's not get mixed up in this C. 1. O. mess You know the
spirit in which we have worked and the progress you have made if we ever
fail to keep up this progress-if we ever fail in our word to you-it will be
easy to bring in a union at that time. WVe certainly don't need it now, because
87 Among the several campaign handbills issued by the -Union, which were introduced
Into eNIdence by the Respondent, is one which listed benefits received by inembers of the
Union. Two of the eight specific benefits listed thereon were "holiday pay" and "sickness,
health, accident, and death benefits paid for by the employer."
INDIANA METAL PRODUCTS CORPORATION 1 1065
it would make nothing but trouble for us. We hope you will vote "NO",
because we will all be far better off if you vote "NO."
The foregoing detailed presentation shows how closely the granting of paid
holidays and of group insurance were related to the Respondent's vigorous
campaign against the Union. That campaign, waged by personal letters to the
employees, opened 3 days after the representation hearing and continued into
the very day of the election. Iil essence, these letters, in unequivocal language,
equated unionization with trouble, strife, and even possible loss of jobs. By
contrast, voting the Union out was closely and repeatedly tied to increasing
prosperity, job security, and augmented benefits. In fact, in its letter of
August 15, above quoted, the Respondent, after having granted those very im-
proved conditions of employment during the election campaign, specifically named
"holiday pay" and "insurance benefits" as among the good things sought by the
C. I. O. which the employees had "here right now." Reference was also spe-
cifically made to "Paid Holidays" in the Respondent's election day letter ot
August 23. Under all of the circumstances, including the fact that the Respond-
ent specifically referred in its campaign letters to the very benefits which had
been granted during that campaign, the Respondent's defense, to which we now
turn, must be persuasive if it is to prevail.
The Respondent's position amounts essentially to this 38 The granting by an
employer of benefits to employees is good per se. The Respondent did not make
the benefits in issue contingent upon the employees defeating the Union, but
actually instituted them with no strings attached and without timing them so
as to affect the organizing drive of he Union. The benefits in issue stem from
a policy of granting "fringe benefits" which Schroeder, who was hired as the
Respondent's manager in April 1948, persuaded the board of directors to adopt
in the spring of 1948. Although the company was then in serious financial
straits, Schroeder persuaded the directors that paid vacations should be insti-
tuted at once, and that other benefits would have to follow as financial condi-
tions permitted in order to attract and hold employees.
Incentive plans followed shortly after paid vacations. By October 1948,
Schroeder was securing the reaction of employees to a group insurance program
for which the Respondent would share half the cost 80 The favorable response
which the insurance proposal evoked from the employees was reported to the
board of directors at their December 1948 meeting and they authorized Schroeder
to secure an insurance plan with what he considered satisfactory provisions and'
to institute it when there were sufficient funds to take care of the Respondent's
half of the cost. During 1948 Schroeder investigated various insurance plans
and, as "the business picture was improving" for the Respondent, Schroeder
pressed for further employee benefits at the December 1949 directors' meeting.
At that meeting the directors authorized the institution both of a plan for
keying wages to the BLS cost of living index during 1950 and also of granting
paid-.holidays when necessary funds were available to meet the added expenses.
The details as to the actual institution of paid holidays and group insurance
during the summer of 1950 have already been related. The first wage adjust-
ments based on the cost of living index, a benefit not put in issue herein, were
paid on September 18, 1950, as soon as the index, in Schroeder's opinion, war-
ranted an adjustment. Accepting the Respondent's explanation of the origin
and the initial authorization of the paid holiday and insurance benefits, we turn
now specifically to an analysis of the reasons advanced for the introduction of
these two plans at the time they were instituted.
33 Summarized from the Respondent's oral argument and brief, which are based largely
on testimony of Manager Schroeder
89 See footnote 34, supra.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to timing concerning the insurance plan , the gist of- the Respondent's con-
tentions and Manager Schroeder's testimony is that numerous proposals sub-
mitted by carriers during 1949 and early 1950 were not satisfactory to Schroeder,
principally because premiums were not based on the experience of the Respond-
ent's own plant, and because dividends were not provided for, if low claims
should produce savings; that as "the year turned into the second half of 1949,
the financial condition of the company improved,- and soon the only controlling
factor was the availability of the type of program that Mr. Schroeder insisted'
upon"; 'o that in "the late spring of 1950 something happened, Mr. Schroeder's
best recollection is that it was a corrective act of the Indiana legislature, which
made it possible for Prudential to include the provisions which Schroeder had
Insisted upon" ; that Prudential submitted its acceptable proposal about the
middle of July ; and that "the insurance program was announced at the earliest
possible moment after an acceptable plan had been proposed." As to the timing
of paid holidays, the position is essentially that financial progress "began to
show well in 1950"; that in June, when "the production efficiency figures for
May" became available, "Schroeder decided that the financial problem had been
conquered"; and that the benefit thereupon given to the employees was repre-
sented to them as having been "earned" by "their increased production," as
demonstrated by a production graph posted in the plant since 19.50 and kept
current.
Since the paid holiday plan involved paying each employee for six holidays
each year, and the insurance plan involved paying administrative costs and
matching 12 monthly payments, ranging from $1.88 to $3 06, paid by each employee
depending on family status, it is apparent that each of the two benefits entailed
a comparable expenditure by the Respondent. On the Respondent's own con-
tentions, it was financially able by the beginning of 1950 to put into operation
one of those two plans, both of which had been authorized. Thus even assum-
ing that the Respondent was actually seeking a'more satisfactory insurance plan,
there is no explanation in the record as to why the Respondent withheld paid
holidays as well as insurance until it was well launched on its campaign to defeat
the Union in the election.
However, the evidence that the insurance program was delayed because
Schroeder was, in fact, seeking more favorable provisions is far from con-
.vincing.• Schroeder's vague. memory as to the-"something which happened in
the spring of 1950 which enabled Prudential to give him what he wanted was in
sharp contrast to his clear and detailed memory on many other subjects. Like-
wise, the Respondent's ready production of documentary evidence on most
matters raises doubts as to why no single bit of documentary evidence was
adduced on such an important issue. And it is particularly 'noteworthy that
none of the notices pertaining to the insurance plan, including the extensive
document which detailed its provisions, makes any mention of 'the two favor-
able features for which Schroeder purportedly had waited so,long. Finally,
it should be noted that the graph posted in the plant, a copy of which was
introduced in the evidence, does not constitute persuasive evidence of the
Respondent's financial ability to do anything, as this graphic presentation shows
only the approximate number of units produced during each calendar month.
Under all of the circumstances, I am satisfied and find that the purpose and
the natural effect of the Respondent's introduction of paid holidays and its
insurance plan at the time it did In connection with its campaign against the
Union was to convince the employees that they did not need the Union to obtain
those and-similar improved conditions of employment, and-that it is immaterial
40 Quoted material in this paragraph is from the Respondent 's brief.
INDIANA METAL PRODUCTS CORPORATION 1067
that the Respondent did not expressly condition those benefits on the Union
losing the election" Accordingly, it is found that the announcement and
institution of paid holidays and the insurance plan constituted benefits to
employees to induce them not to designate the Union as their collective bargain-
ing representative. It is further found that by said actions the Respondent
interfered with, restrained, and coerced its employees in violation of Section
8 (a) (1) of the Act.
2. Interrogation and threats
Two incidents during the spring of 1950 are relied upon by the General
Counsel to establish that the Respondent interrogated and threatened employees.
These involve statements to employees by Richard Roe and Nolan Lewis, whose
supervisory status is not disputed, and who were not called to testify by the
Respondent. The facts which follow as to these two incidents are found upon
credited and unrefuted testimony of the two employees involved42
Herbert Gilliland, a packer in the shipping room , was approached in the ship-
ping room shortly after the middle of May 1950' by his supervisor, Nolan Lewis,
the shipping clerk whose authority is that of foreman over shipping room em-
ployees. Lewis told Gilliland that if he "Joined a union or signed any papers,"
his "days would be numbered." Gilliland, who testified that he was "in a way"
surprised by Lewis' remark, admitted that Lewis was "a gabby kind of a guy"
who would "fly off the handle occasionally" and who would "say some things
occasionally" that Gilliland would later find out were untrue or without authority.
There is no evidence, however, that Lewis ever retracted his statement to
Gilliland, or informed Gilliland that he had no authority to make it.
Joanna Sutton Sheetz, a hopper filler and clerk in the thread rolling depart-
ment , was approached by her foreman, Richard Roe, while she was at work on
the second shift on April 24, the day upon which Meyer and Sanders were
informed that they were discharged. Roe's- opening remark to Sheetz was,
"You didn't sign any union card, did you?" Sheetz answered, "No." 44 Roe
closed the conversation with the statement, "Well, that is good, because there
are 50 people that did and they are all going to get fired" Sheetz admitted
that Roe said "things occasionally" which she "later found out were not true"
or that he did not have authority to say, and also that Roe would "occasionally
fly off the handle around work ." There is no evidence, however, that Roe ever
later retracted or modified his statement to Sheetz.
The Respondent contends that even if Lewis and Roe made the remarks
attributed to them, the Respondent should not be held responsible, primarily
because these incidents were isolated; the Respondent's supervisors had been
instructed to maintain a neutral attitude ; the Respondent's neutral position
had been, made known to its ' employees ; and the remarks of Lewis and Roe
were not authorized and constituted "personal opinion." Upon careful con-
sideration of the numerous cases cited and of all of the circumstances revealed
by the record, I am unable to agree.
41 Bonwit Teller, Inc., 98 NLRB 808, and Hudson Hosiery Company , 72 NLRB 1434.
The facts and surrounding circumstances In the several cases cited by the Respondent
differ so materially from those in the case at bar as to make those cases inapposite.
49 The "speculation" in the Respondent 's brief as to circumstances which may have led
these two employees to misquote their respective foremen is Interesting but not persuasive,
under all the circumstances.
48 Gilliland placed the incident as "something like" 3 or 4 weeks after Meyer and Sanders
bad been discharged. ,
Sheetz did sign a union card but the date upon which she signed it Is not disclosed
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the unfair-labor practices found elsewhere in this Report, it
cannot be said that these two incidents, one of which involved interrogation
and both of which involved threats, constituted isolated incidents within the
meaning of Board precedent " Nor can any instructions which Manager
Schroeder may have given his supervisory staff at a meeting of foremen in
his.office on April 28, 1950, and at a second meeting a week later, negate the
statements of Lewis and Roe, since the employees were not notified' of any
such instructions which may have been given to the foremen. Further, I do
not believe that a careful reading of the Respondent's several letters to its
employees, from which quotations have heretofore been presented, will support
the contention that the Respondent was maintaining a neutral position Hence,
even if Lewis and Roe were "gabby and unreliable" supervisors. I do not believe
that, under all the ramifications of this case, their remarks can be dismissed
as unauthorized expressions of personal opinion. Accordingly, it is found that,
by the foregoing remarks of Lewis and Roe, the Respondent interrogated and
Ihreatened employees in violation of Section 8 (a) (1) of the Act.
D. The discharges of Sunders and Meyer
1 Reasons advanced by the Respondent for the discharges
John Sanders and Howard Meyer were informed on Monday morning. April 24,
1950, at a conference with Manager Schroeder and Superintendent Bretz, of
the reasons for their respective discharges. - While the testimony to he con-
sidered later as to what transpired during that conference, like most of the
evidence pertaining to these discharges, is in conflict, there is undisputed
documentary evidence as to the reasons reported contemporaneously by the
Respondent to the Indiana Employment Security Division, herein called the
Division, on its standard form, "REPORT OF UNEMPLOYMENT." The
explanation on the form for Meyer, which form was dated April 24 and signed
by Schroeder, read as follows :
This employee was asked to leave to enable him to find a position more
to his liking He was dissatisfied with us and over a long period attempted
to discourage his fellow-workers. He also made everyone's business his
affair resulting in lost time and unnecessary shop gossip.
A similar form, also dated April 24, stated as to Sanders:
This man was discharged for habitual absenteeism on the sixth work
day without good reason or good cause.
The gist of the Respondent's position about Sanders, as stated in its brief, is
that, while Sanders "was capable of and did perform good work," the plant
"regularly worked six days per week" and Sanders' "absences were his trouble."
The "immediate cause" of Sanders' discharge is stated as "his absence on Satur-
day, April 22" from his second-shift job in the toolroom following, as it did,
absences on the preceding Friday and Saturday, April 14 and 15.
' As "to Meyer, the numerous incidents and opitiions of supervisors cited in the
Respondent's brief as justifying Meyer's discharge amount in essence to "mis-
conduct and poor workmanship" over a long period of time. According to the
Respondent, Meyer's discharge was precipitated shortly after the first shift
eneded at 3 : 30 p. m , Saturday, April 22, because Meyer "went to the card rack
+6 I. B. S Manufac turing Company, 96 NLRB 1263 , and Wood Manufacturing Company,
95 NLRB 633
INDIANA METAL PRODUCTS CORPORATION 1069
and looked the cards over" immediately after Superintendent Bietz at "about
twenty minutes after three" had removed Sanders' time card and because Meyer
thereafter "went about the toolroom talking and visiting with other employees." 16
It is the Respondent's position that the two discharges took place shortly after
3: 30 p. m , Saturday, April 22; that Schroeder made the decision to discharge
Sanders, ai;teL,,conferring with Bietz about Sanders' absenteeism and_ because
Sanders failed to- show up for work ; ' and that Colman Howton, the foreman of
the toolroom in which Meyer worked, after consultation with Bietz and Schroeder,
"decided that Meyer was to go." We turn now to a consideration of the ques-
tion as to what reasons the Respondent gave Sanders and Meyer when they were
told of their discharges on April 24.
When Meyer went to work about 7: 00 o'clock Monday morning, he found that
his time card was not in the rack. Meyer asked Foreman Howton where his card
was. Howton replied, "The man says you are not satisfied. You better find
-something else." Meyer then left the plant and went to Sanders' home where
he told Sanders that he had been discharged. Sanders, who had assumed that his
own discharge had taken place when he learned from another employee on the
-preceding Saturday afternoon that his card had been removed from the rack,
went with Meyer to a restaurant where the two waited until it was time for
Schroeder to, come to his office. Shortly after 9: 00 o'clock, Sanders and Meyer
saw Schroeder, who called Bietz into his office before any material discussion
took place.
My findings concerning the pertinent aspects of what transpired during the
discussion of April 24, which lasted at least half an hour or longer, are made
upon my analysis of the testimony summarized below of the four individuals
present, Schroeder, Bietz, Meyer, and Sanders. It was Schroeder who explained
the reasons for the discharges, discussing Sanders' case first. Sanders' version
of what was said was in essence that Schroeder told him that he had not
moved "fast enough" ; that when he asked Schroeder what he meant, Schroeder
"changed the subject and said about me being absent on Saturday, my not
working on the sixth day;" that he (Sanders) said that he had "been working
Saturdays, working overtime trying to help them catch up"; that Schroeder
said that he had seen him in town about 3: 00 o'clock the preceding Saturday
afternoon intoxicated and "in no shape to be at work" ; that an argument then
ensued ; and that Schroeder,. thereafter started talking "about the company
being in the red and about harmony between the people."
Meyer testified that he did not "pay too much attention" to the explanation
about Sanders, but that he did remember Schroeder saying, "You didn't move
4° In pointing up this incident as "sufficient cause for the separation of Meyer when seen
against the background of his past history," the Respondent's brief states
The immediate cause for his discharge was the event of the late afternoon of April 22
when lie went to the card rack and spent the rest of the work day gossiping with
other employees instead of working, making everyone else's business his affair and
resulting in loss of time to himself and those whom lie bothered
47 The finding that Howton gave Meyer this reason for his card being removed is made
on convincing testimony of Meyer which is credited in'the light of all of the circumstances
Howton testified that he did not remember having such a conversation and did not remem-
ber seeing Meyer that early on Monday. Howton also testified that it was about 9 : 00
o'clock when he first saw Meyer in the shop that day, and that he did not have any
conversation with Meyer that Monday morning It is logical, however, that Meyer, whose
card had been removed from the rack after he had checked out at 3.31 p. in Saturday,
would have come to work at the usual time Monday morning and would have gone to his
forcmElh-When he found that he had no time card in the rack Moreover, the reason which
Meyer credibly testified that Howton gave him Is consistent with the reason which the
uesoondent that same day admittedly reported to the Division.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fast enough, did you, Jack?" Bietz testified that Schroeder told Sanders that
"he was being discharged due to being off so much ," and that Sanders said
that he was not there to argue, he just wanted to know.
In testimony cited in the Respondent's brief, Schroeder explained what he
said as follows :
My conversation with Sanders was very brief, very friendly. He asked
me why his card was pulled, and I told him that his attendance record
was poor ; his absence was poor and he failed to report in when he was
absent. I thought that it had worked a great handicap on the department
and the supervisors and I began to give him a bit of his history and he
said , "I am not here to argue, Norb ; I am only here to know why my card
was pulled."
Schroeder specifically denied making any statement about Sanders not moving
fast enough or that he had seen him down town in no shape to come to work.
Schroeder did testify, however, that he told Sanders during their conversation
that Monday that he had been quite sure that Sanders was not coming to work
on the preceding Saturday because he had "seen him on the street in Rochester
all dressed up." 4°
On the whole, I believe that the testimony of Sanders serves better as a guide
to the general scope of the foregoing discussion than as an indication of pre-
cisely what was said." There is no doubt in my mind that Schroeder attributed
Sanders' discharge to his record of absenteeism, including his failure to report
for work on Saturdays. It is also evident that there was some discussion of the
fact that Schroeder had seen Sanders in Rochester the preceding Saturday,
although I am not convinced that Schroeder accused Sanders of being at that
time unfit to come in to work 80 I am also convinced that Schroeder did make
some reference to Sanders having not acted quickly enough, but I believe that
this occurred when Sanders made some reference to the admitted fact that he
had telephoned Bietz on the afternoon of April 22 that he would not be in
to work that afternoon. I accept the testimony of Bietz and Schroeder that
this call was made about 3: 55 p. in., some 25 minutes after Sanders' shift had
started the preceding Saturday. And I agree with the position taken in the
Respondent's brief that any such remark pertained to Sanders' tardiness in
making that telephone call, the first which Sanders had ever made on any
occasion when he was absent, rather than to Sanders having failed to move
rapidly enough in organizing the Union. In short, I find that the explanation
of his discharge which Schroeder gave to Sanders on April 24 was consistent
with the explanation given the Division and with the position now taken by the
Respondent. We turn to the explanation given to Meyer on April 24.
This is an epitome of Meyer's testimony as to Schroeder's explanation of his
discharge. Schroeder said that Meyer "was not satisfied" with his job; was
411 believe that Schroeder, in fact, had seen Sanders in Rochester on Saturday after-
noon , April 22, shortly before Sanders was due to report for work on the second shift.
Sanders admittedly was in Rochester at the time in question At the hearing, Sanders
produced a signed statement from his physician, John C Glackman, M D. dated August
7, 1950, reading as follows :
This is to state that John Sanders was sick and in my office for treatment April 22,
1950, and further state that he was not intoxicated at that time.
41 It should be noted that while I agree with much of what the Respondent says in its
brief as to Sanders ' lack of credibility, substantial questions , such as some raised by the
General Counsel in oral argument, also are apparent as to Schroeder's credibility.
60 I think it likely that Meyer would have remembered such an accusation, and I believe
that Sanders projected what he knew had happened on a previous week end , discussed
below in relation to Sanders ' absences on April 14 and 15, into the conversation of
April 24.
INDIANA METAL PRODUCTS CORPORATION 1071
not "taking- an interest" in his work ; "was causing too much trouble in the
plant 'among the employees "; and that he thought Meyer "should leave and find
another job ." Meyer protested that he did take an interest in his work ; in-
sisted that when a machine was down he worked as hard and as fast as he
could to get the machine in production ; and said that even Bietz would verify
that. Bietz said , "That is right." Meyer asked Schroeder why he would have
"stayed there over two years " if he was not satisfied with his job. Schroeder
mentioned that Meyer had gone to the card rack when Sanders' card had been
removed . Meyer told Schroeder that he had gone to the rack because he wanted
to see whether it was his or some other employee 's card which had been re-
moved." Meyer admitted that he did not recall how the conversation ended.
Meyer denied that Schroeder said anything to him about faulty work , or com-
plaints about his work, or an accumulation of charges against him . He also
denied that Schroeder said anything at that time about the possibility of re-
employing him. Meyer did, however , recall a conversation about employment
some 3 days to a week later , when Schroeder told him "to get out and find another
job and see how things were other places ; come around in six or eight months
and he would have a talk with me concerning employment."
The gist of Sanders' testimony is that Schroeder told Meyer that he was
discharged because Meyer "wasn't satisfied with his work " ; that Meyer said
that if that was so he would not have stayed 2 years but "would have quit a
long time ago"; and that they "talked back and forth" but he did not pay
attention.
Bietz' testimony was that Schroeder explained to Meyer " the complaints that
had been made about him and he told Mr . Meyer he thought it would do him a lot
of good to work in another plant for a while" and that Schroeder also said that
he would like to have Meyer "work in another plant for a while and see how
they worked other places and that after he done that , he would be glad to
have Howard back ." Bietz further testified that he could not recall any answer
Meyer may have made and that while there was "some discussion" between
Meyer and Schroeder , he could not recall what it was.
On direct examination as a witness called by the Respondent , Schroeder nar-
rated his explanation to Meyer in the following language :
I told him that over the time of my connection with Indiana Metal I had
had frequent complaints relative to his attitude generally and his work-
manship, and he asked me-and I am trusting my memory here on some of
these specific things-why he had not been told , and I was surprised he
had not been told , because the men who were directly responsible for his
activity always told me that it was discussed with Howard.
I told him that I thought he was an unhappy employee and that he was
dissatisfied with his association with Indiana Metal, from all observation
and comment that got back to me, such as a conversation that would get
back to me about his wages. . . .
I pointed out to him that on several occasions when the policy of the
company was almost , strictly speaking, five cent steps in wage adjustments,
I had personally processed 10 cent steps in the hourly rate to bring him along
faster.
We discussed his relative skills with certain other people ; one person's
name, particularly, who came up , was Dorsett . He took a defensive position
on that, denying that he ever compared himself with Dorsett.
61 Since three of the four employees attending the first meeting of the Union worked in
We toolroom , I do not dgree with the-Respondent's contention that Meyer's explanation
was "obviously not based on fact."
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The gist of his conversation was, as I recall, that toward the very end
of the conversation, he said to me, "Norb, I think I should have been
warned," and I think that about terminated the conversation.
I told him that if there were anything I could do to assist in his finding
employment, in the way of submitting his record or a letter of recommenda-
tion or a phone call, that he could refer to us. refer any prospective employer .
to us,'and as I recall, our parting was very friendly. We Shook hands and
wished each other luck, and that was it.
The only other testimony concerning this conversation to ^vhich we need advert
is that of Schroeder when first called as an adverse witness by the General
Counsel. The explanation which Schroeder then testified that he had given
Meyer was that it was "an accumulation of charges against hint over a period of
time, culminating with his having gone over to the card rack to see whose card
Mr. Bietz had pulled and then stopping by on his way back to his work place to
discuss with other people, which was what we assumed was a discussion on
whose card was pulled " Schroeder did not testify that he gave Meyer any
details as to any complaints by supervisors about poor workmanship, but lie did
testify that Meyer said, "I think I should have had a warning."
Meyer's testimony as to Schroeder's explanation of his discharge impressed me
as essentially truthful, although not complete as to details. His testimony is
corroborated by that of Sanders, insofar as Sanders remembered the conversation.
Meyer's version is only pai•tially in conflict with the"versioii of Bietz. In•any
event, I am satisfied that Schroeder's testimony was embroidered with after-
thoughts and that, with certain possible additions, the conversation occurred
substantially as testified by Meyer. I believe, for instance, that when Schroeder
indicated that Meyer should get another job, there may have been an implication
of possible reemployment with the Respondent which failed to register with
Meyer on April 24, but was made clear to him a few days later. It may well
he that Schroeder did indicate that lie had processed wage increases for Meyer in
the past, and that he did offer to assist him in securing other employment. And
while I am convinced'that Schroeder did it discuss poor workmanship or indi-
cate that Meyer's work had been the subject of complaints over a long period
of time, I do not doubt that such criticism as Schroeder made of Meyer's general
attitude and activities did evoke a surprised retort from Meyer to the effect that
he felt that he should have had some kind of warning before being discharged.
Certain further matters should here be considered. On credited testimony of
Meyer, I find that within a week of his discharge, Meyer and Schroeder had a
conversation when Meyer went to the plant to retui n his safety glasses and get
his check. During that conversation about employment, Schroeder suggested
that Meyer find another job and see him 6 or 8 months later about reemployment
with the Respondent 12 Thereafter Meyer saw Schroeder and asked for a letter
of recommendation. Schroeder indicated that one would be ready for Meyer
the next day. When Meyer went to the office, Schroeder handed him a letter
dated May 15, which Schroeder had signed on behalf of the Respondent. After
banding the letter to Meyer, Schroeder said, "Now, we have done you a favor
]low about doing us a favor?" Meyer asked what the favor was and Schroeder
replied, "Withdraw those charges that you have against us." Meyer stated that
the Union had filed the charges and that he was going to let the Union handle it"
62 While Meyer did get a job elsewhere, he did not return to discuss with Schroeder
reemployment with the Respondent. I do not deem that his failure to do so is material
under the circumstances here presented.
a3 While the above quotations are from Meyer's testimpny, there is no conflict between
his testimony and Schroeder's as to the import of the conversation which occurred after
Schroeder had handed the letter to Meyer.
INDIANA METAL PRODUCTS CORPORATION 1073
The letter which Schroeder gave Meyer was addressed, "To Whom it May Con-
cern." After stating that Meyer had been employed since February 17, 1948,
in the toolroom as a "machinest and 13 class tool maker," this letter evaluated
Meyer's abilities and stated his reasons for leaving as follows :
We found him to be energetic, cooperative, and willing.
He has a faculty of learning quickly and assimilating new ideas rapidly.
He left our employ because he thought opportunities were greater on the
-outside.
2. Some preliminary considerations as to the Respondent's practices
It is clear from the foregoing section of this Report that the reasons advanced
by the Respondent throughout for its discharge of Sanders have been consistent,
while those advanced as to Meyer have not been consistent. A similar dichotomy
appears when we examine the reasons which in practice have led the Respondent
to discharge employees. During the period from December 29, 1948, through
March 28, 1951, there have been, according to an exhibit introduced at the hearing
by the Respondent, 25 "separations for cause," in addition to the 2 cases here in
issue. It is thus apparent that the Respondent does discharge employees at the
rate of approximately 1 a month. And from the tabulated explanations which
the exhibit shows were given to the Division," it is obvious that by far the most
prevalent cause for discharge. has, been; absenteeism. Excluding Sanders', case,
absenteeism was the only cause listed in 11 cases In 2 additional cases involving
absenteeism, the causes tabulated are "absenteeism without proper report" and
"poor attitude, unable to get along with others, and absenteeism." The reason
appearing on Sanders' form has been set out above. Thus absenteeism was the
only or the principal cause in 13 of a total of 27 discharges.
By contrast, nothing reasonably resembling the cause given about Meyer in
reporting to the Division can be found in this tabulation. In addition to absen-
teeism, this tabulation contains such reasons as false information, refusal to
transfer work hours, refusal to do assigned work, Walking off, the job, poor atti-
tude, inability to get along with others, too many errors, poor work, misconduct,
and insubordination. It is thus obvious that the Respondent customarily reports
to the Division such causes of discharge as it then failed to report but now
advances with respect to Meyer.
It should also be noted that, while the Respondent had no written shop rules
at the time the two complainants were discharged, written rules were posted
about June 15, 1950, some 6 weeks after the original charge had been filed.
Schroeder testified that the rules thus reduced to writing had, in fact, been
"in effect during the entire time" of his administration. The posted "YQUR
SHOP RULES" divide the causes for discharge into two main groups, those
calling for "mandatory discharge" and those leading to "optional discharge or
written reprimand." Nothing listed under the offenses for which "immediate
discharge is mandatory" resembles any of the causes given by the Respondent
for its discharge of either Meyer or Sanders. As to the second group, the
offenses leading to optional discharge or written reprimand, item 10, "Absence
from work without notice or good cause," seems clearly in point with respect to
Sanders. Another, item 11, "Absence from work for three consecutive days
without notice," should also be noted. As to Meyer, the following excerpts from
items 5, 9, and 12, "leaving work without permission," "inattention to duties,"
and "stopping work before regular quitting time (5 minutes before the whistle),"
" Even thou¢h these reasons are summarized in some instances . I am satisfied from the
examination made by counsel at the hearing of the original forms that the reasons, wt
tabulated , essentially reflect what the forms showed.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have some bearing on Respondent's present contentions. There is nothing in the
rules, however, which coincides with the reasons which the Respondent originally
gave for Meyer's discharge.
It is significant that the shop rules provide that any violations falling within
the second group "will be cause for written warnings" ; that the first two such
warnings will come from the foreman ; that the third "will come from the General
Manager with a conference in his office" ; that the foregoing three warnings
will apply "only to violations of the same rule" ; that a fourth warning during
a year's period "will be cause for discharge"; and that any warning will stand
for 1 year and will thereafter "be removed." It should also be noted that
Schroeder testified that the practice is to "exhaust" the cause of "every dis-
charge very carefully," because they have "an investment" in any employee
with over 60 clays' service which they "are going to preserve" if they can
hence they consult with an employee because they do not want to discharge him
"if it is not an outright breach for which there is no excuse."
3. The setting for the discharge of Sanders as advanced by the Respondent
The evidence and the issues yet to be considered about the discharges of
Meyer and Sanders present so many contradictions and contentions that some
of them can be given only cursory attention. To highlight the major problems
worthy of more detailed consideration, it appears useful to present first as to
each discharge, in essentially narrative form, what the Respondent contends,
on the basis of its evaluation of the evidence, led up to each of these discharges.
Thereafter, without devoting time to minor conflicts in the evidence, either
where I deem the point relatively immaterial or have accepted the Respondent's
evidence as more persuasive, I will discuss the respective discharges to deter-
mine the extent to which the record as a whole supports or refutes the over-all
picture as the Respondent advances it. I am aware that this approach will
leave a residue favorable to the Respondent's version where minor points are
ignored, but more detailed approaches appear too cumbersome.
This then, summarized partly from its brief, is the Respondent's setting for
its discharge of Sanders. On April 20, 1949, Sanders, a competent workman
who had previously been in the Respondent's employ from August to December
1948, was rehired after Schroeder had discussed with him his absences and
drinking during his previous employment and had told Sanders that absences
and drinking would constitute cause for discharge. About the last of January
1950, Sanders engaged in a loud and heated argument with Foreman Bunting
about which Schroeder later learned. Schroeder called Bunting and Super-
intendent Bietz into his office to discuss the matter and told them that Sanders
was to be discharged for any further abusive language, insubordination, or
absences. Sanders' absences, without previous notice or permission, thereafter
continued, particularly on Saturdays which were workdays at the plant, and
in spite of the fact that his former foreman, Bunting, and his new foreman,
Howton, who became toolroom foreman on March 20, 1950, tried to get him
to improve his attendance. However, Superintendent Bietz did not take any
action in the matter because the work load in the toolroom war such that he
badly needed Sanders' skill in finishing dies. "
Sanders was absent on Friday, April 14, without notice or permission. Super-
intendent Bietz, who was in general charge of the plant which was then falling
behind on necessary tools, needed Sanders' production. So he sent Production
Manager Harold Comer to Sanders' home early on the afternoon of Saturday,
April 15, to assure that Sanders would come to work that day. However,
INDIANA METAL PRODUCTS CORPORATION 1075
Sanders refused to come to work, and told Comer that he had a hangover, could
not stand the hammering of the machinery, and might have to go out and do it all
over again that night. Comer returned to the plant and reported his conversation
with Sanders to Bietz.
On Friday evening, April 21, Paul Dorsett, the toolroom foreman on the
second shift, told most of the toolroom employees in a group, which included
Sanders, that they should not forget that they were to *work that coming
Saturday. Sanders stated, "You may be working, but I am not going to be
working." "
On the afternoon of April 22 at about 3 o'clock, when Schroeder was checking
the payroll for the April 2 through 15 period for which the checks had been
issued the preceding day, he noticed that Sanders had worked 16 hours less
than other employees. Schroeder asked Bietz why Sanders was 16 hours short.
It was then that Schroeder first learned from Bietz about Sanders' absences
on April 14 and 15, about Comer's visit to Sanders' home on April 15, and about
the report which Comer, who by that time had left the plant for the day, had
given to Bietz on April 15 as to what Sanders had told him. Schroeder, to whom
Bietz was directly responsible, asked Bietz why he had not discharged Sanders
in accordance with the instructions which he had previously given him shortly
after Sanders' argument with Bunting. Bietz explained, either then or later
that day, that the work load in the toolroom necessitated his getting as much
time out of everyone as he could and that he had figured that it was better to
get 4 days' work from Sanders than none at all. Bietz assured Schroeder that
Sanders' absences had been discussed with him. Schroeder asked Bietz to bring
Sanders to his office so that he could talk with him.
It was then about 3 : 10 p. in., and Bietz told Schroeder that Sanders usually
came in at about that time. But when Bietz went to look for him, Sanders had
not yet arrived and Bietz so reported to Schroeder. About 5 minutes later, when
Bietz again reported that Sanders still had not arrived, Schroeder told Bietz
that, rather than wait around for Sanders, he should remove Sanders' time
card from the rack so that Sanders would have to come to the office when he did
come in. Thereafter Bietz, at about 3: 20 p. in., took Sanders' card from the
rack and put it in his desk.
The events which transpired immediately after Bietz removed Sanders' card,
including most of the subject matter of a further discussion in Schroeder's
office among Bietz, Howton, and Schroeder, pertain to the discharge of Meyer
and are considered in a subsequent section of this Report. However, almost at
the outset of that conversation in Schroeder's office the 3: 30 whistle blew. At
that point, Schroeder asked both Bietz and Howton if either of them had
received "a phone call or any advice" that Sanders would not come in. When
each, in turn, replied that he had not, Schroeder stated, "The work shift has
started. You know what the rules are. As of this date, Sanders is through."
After the above discussion had ended, apparently at about 3: 40 p. m., witl}
a decision to discharge Meyer also, Bietz and Howton returned to the shop.
Bietz thereupon removed from the rack Meyer's card and that of another
employee, William H. Hentzler.S° Bietz then took those two cards and that of
"Howton supervised the day shift and was the general foreman of the toolroom
While Dorsett had general responsibility on the second shift for Sanders' work, Sanders
got many of his instructions directly from Howton The quotation in the above paragraph
is from the testimony of Sanders, who admitted this incident It should be noted that
earlier that month most departments did not work on Saturday, April 8, because of short-
age of wire And it should be iemembered that emp'oyee dissatisfaction with Saturday
work was a subject later considered repeatedly by the Committee
60 See footnote 10, aupr a
227260--53-vol. 100-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanders into Schroeder 's office and laid the three cards on Schroeder 's desk,
explaining that Hentzler , whose case Bietz and Howton had not discussed with
Schroeder , had been absent three times without notice and that they were "letting
him go."
It was about 5 minutes before 4 that afternoon when Bietz, who was with
Schroeder at the time , received a telephone call from Sanders . He said that he
was at the doctor's .office and would not be in to work . When Bietz hung up the
receiver , Schroeder looked at his watch and said, "This is a hell of a time to call,
at five minutes to four when his shift started at 3: 30 " Schroeder's remark ended
the discussion as to Sanders on April 22. What transpired on Monday morning,
April 24, when Sanders and Meyer were informed of their discharges , has already
been considered.
4. Analysis and conclusions as to Sanders ' discharge
Aside from some relatively minor respects in which the foregoing picture prob-
ably puts a somewhat better face on the Respondent 's case than the record,-as a
whale seems - to warrant , I believe , upon careful consideration of all of -the
evidence and in spite of some doubts , that the above account represents approxi-
mately - what transpired leading up to Sanders ' discharge . However , there are
several conflicts and problems in the evidence of sufficient significance to warrant
discussion . For. instance, Sanders' version of his conversation with Schroeder
at the time he ' was reemployed differs from Schroeder ' s. Sanders denied that
Schroeder then cautioned him about drinking . But even on Sanders' version, it
appears that ' Schroeder did not at once agree to his reemployment , and Sanders
did admit , somewhat evasively, that there had been discussion of his "habits."
Ido'Nnot believe that , as such , any drinking Sanders may have done has any
significance in this case . Hence I am ignoring some minor incidents about which
there is some testimony pertaining to Sanders ' drinking. But it is my opinion
that Schroeder 's testimony that he did tell Sanders, in connection with his
reemployment in April 1949, that absences and drinking would constitute cause
for discharge , is credible under all the circumstances . In any event , the Respond-
ent rests its case as to Sanders on his unauthorized absences, rather than on any
claims about drinking , as such.
Some consideration should be given to the argument which Sanders admittedly
did have with Foreman Bunting about the end of January 1950 . Sanders' version
was that some dies he was supposed to finish were so crooked that he refused to
run them ; that he locked his toolbox and started to leave ; that Bunting invited
him into the office to talk it over ; that during that discussion Bunting agreed to
try to "straighten it up and see that better work was done" ; and that the system
was changed so that each man worked on his own dies "all the way through,
start to finish." Sanders testified that he used no "bad language " outside of what
he used "in every day English, locally," a term upon which he was not asked to
elaborate.
Joe Bunting , who was, then Sanders' foreman , left the Respondent 's employ,
apparently during the latter half of February 1950, and did not testify. Bietz
testified that on the occasion in question he was attracted to the place of an argu-
ment "in front of all the rest of the people " by Sanders ' "quite loud" voice which
he had heard above the shop noise; that Sanders was going to quit unless he
could make and finish his own dies because he was having too much trouble
finishing other people's dies ; that Sanders used "quite a bit of profanity" such
as "God - damned tools" but did not call Bunting any names ; that he (Bietzj
explained that they could not work the way_ Sanders insisted and that employees
"have to do the jobs as they are brought to" them ; that Bunting tried - to talk
to Sanders in "a decent manner" in order "to cool him down" ; that , Bunting
INDIANA METAL PRODUCTS CORPORATION 1077
promised to try to eliminate some of the trouble by getting other employees to
correct their work ; and that Sanders went back to work. To the extent that
there is substantive disagreement in the foregoing versions of Sanders and Bietz,
I find Bietz' version to be the more credible. I do not believe, for instance, that
the whole system was changed, although it is obvious that Sanders had it legiti-
mate complaint which management agreed to try to meet. I am satisfied that
Sanders, in front of other employees, was unnecessarily loud and irritatingly
emphatic during that discussion which Bietz and Bunting later related to
Schroeder. That Schroeder thereupon would point out to Bietz, who had only
recently come into the Respondent's employ and had just assumed his position
as superintendent, that such behavior was not to be tolerated, is reasonable,
and I credit the testimony of Schroeder and Bietz to the effect that Schroeder
then told Bietz and Bunting that Sanders should be discharged for any further
violations."' It should be noted that the Respondent apparently does not advance
this incident, as such, as a reason for discharging Sanders, but rather to show
what motivated Schroeder on April 22 in determining that Sanders should be
discharged forthwith, when he failed to show up for work that day, just after
Schroeder had learned from Bietz about the happenings of April 14 and 15,
concerning which Bietz, despite Schroeder's instructions, had failed to take any
action.
A contention upon which the General Counsel lays stress is that it was Monday,
April 17, rather than Monday, April 24, as the Respondent contends, when
Schroeder talked with Comer about what had taken place when Comer went to
Sanders' home on April 15. That Coiner did make such a visit at Bietz' request
is not disputed. And what the Respondent contends, as above set out, that
Sanders told Comer on that occasion is essentially what Comer, who now works
elsewhere, testified credibly when called as a witness by the General Counsel.
There is no dispute that Comer reported this conversation to Bietz upon his
return to the plant on April 15, nor that he thereafter on a Monday, either April 17
or 24, related it to Schroeder. Bietz testified that it was April 22 when he first
mentioned Comer's visit to Schroeder and Schroeder testified that he first learned
of that visit from Bietz after he had found, by examining the payroll on April 22,
that Sanders was 16 hours short.' On Schroeder's version, Comer had left the
plant on Saturday afternoon, April 22, when he first learned from Bietz about
the incident, and it was not until Monday, April 24, after his conversation with
Meyer and Sanders, that he finally talked with Comer on the matter. It is appar-
ent from Coiner's testimony as a whole that he believed that his conversation
with Schroeder occurred on the Monday following his visit to Sanders' home,
but he admittedly was uncertain as to whether it had occurred that Monday
or a week later, and he testified that, if he was not mistaken, Bietz had already
told Schroeder about the incident.
There appears to be no particular reason why Comer, who was sent to San-
ders' home by Bietz and admittedly reported back to Bietz, would have
reported the matter also to Schroeder in the absence of a request from Schroeder.
Yet Schroeder scarcely could have made such a request without prior knowledge
of the event. Where Schroeder would have obtained such prior knowledge
except from Bietz is not apparent. However, if Schroeder and Comer, in fact,
did discuss Comer's visit to Schroeder's home as early as Monday, April 17,
then much of the Respondent's explanation of what happened on the afternoon
°T Whether or not absenteeism specifically was then mentioned, the import of Schroeder's
position was that Sanders should be kept in line.
68 While Schroeder attributed his discovery of Sanders' shortage to a routine payroll
check, it is quite possible that Schroeder was particularly interested in Sand is' work
record because be had just seen him a few minutes before on the street in Rochester.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of April 22 , with respect to Sanders' discharge , is enmeshed in a tissue of
fabrication . But the evidence as a whole does not warrant finding that Schroeder
discussed this pivotal matter with Comer prior to April 22. Hence, although
for reasons discussed subsequently herein, there is much which I do not accept
in the Respondent 's explanation of what happened that same afternoon -with
respect to Meyer, I am not persuaded that with respect to Sanders, the Respond-
ent fabricated the coincidental elements in its explanation of the events of
the afternoon of April 22 , which form the core of its defense as to the _ timing
of Sanders ' discharge.
The evidence establishes that the plant customarily worked on Saturdays
at all times here material , except for April 8, 1950, when there was a wire
shortage . Sanders testified , and the General Counsel contends , that Sanders
entered into an agreement about the time of his reemployment with former
Foreman Bunting that he would not have to work on Saturdays . Sanders'
explanation for his not going to work on Saturdays , his agreement with Bunting
made in order to avoid higher income taxes , was not persuasive. Sanders did
not advance any such agreement to Comer on April 15 ,w or to Schroeder on
April 24, to justify Saturday absences . I am satisfied that none of those in
authority over Sanders at the time of his discharge , Schroeder , Bietz, Howton,
or Dorsett , had ever heard of any such agreement , and Sanders does not con-
tend that he ever entered into such an agreement with Howton , who became
the toolroom foreman after Bunting left . Everything considered , I do not-be-
lieve that Bunting ever actually entered into an agreement with Sanders that
he did not have to work on Saturdays, and even if Bunting , by friendly accept-
ance of Sanders ' independent behavior, led Sanders to believe that he -could
come in or not as he pleased on Saturdays , Bunting was out of the picture for
approximately 2 months before Sanders was discharged.
Nor do I believe that , as the General Counsel contends , an offer to Sanders
of a job as leadman , admittedly made a number of weeks before Sanders was
discharged , negatives the question of Saturday absences . Sanders, whose hours
on the second shift were similar to those of his wife who worked elsewhere,
testified that possibly 2 or 3 weeks before he was discharged , Bietz and Comer
came to his home and asked him "to take over the supervision of running the
dies for the headers," which wou?d have required that he work the day shift, and
that he declined because changing shifts would disrupt his home life. It is not
clear how much more responsibility or pay would have been involved , but it is
apparent from Schroeder 's testimony that, with Schroeder 's knowledge, such a
proposition was made to Sanders. According to Schroeder , it was in February
or March, during the period after Bunting left and before Howton came, at a
time when Superintendent Bietz was also filling in as toolroom foreman, that
Bietz, to expedite production on dies, proposed making Sanders "a leadman on
the drill press." Schroeder testified he told Bietz that they were in a hole; that
as the superintendent he knew h,s problems ; and that if that was one of his
solutions , it was his "baly." I believe that Schroeder 's testimony places the
event at a likely time , and that Schroeder 's earlier willingness that Bietz try
Sanders out in a position involving more responsibility does not constitute a
waiver as to Sanders ' absenteeism . Admittedly Sanders was a good workman.
The Respondent ' s position on Sanders ' absenteeism indicates that it desired
more dependability and production from Sanders , and is not incompatible with
an earlier offer of leadman responsibility which Sanders declined.
69 Sanders did testify that he told Comer that he was not "supposed to work today,
anyhow, according to the notification," a notice posted concerning the wire shortage, but
this does not coincide with Comer's credited version of this conversation.
INDIANA METAL PRODUCTS CORPORATION 1079
That Sanders, after his reemployment in April 1949, was repeatedly absent,
often on Saturdays, is clearly demonstrated by an exhibit based on the Respond
ent's time cards. During the period of approximately a year before his dis-
charge, Sanders was absent 17 full days and 2 half days. One of the half days
and 9 of the full days were Saturdays. The distribution of the dates of these
absences shows that Sanders' absenteeism was becoming progressively worse. It
was almost 2 months after he was reemployed before Sanders had his first
absence, but during the remaining 61, months of 1949, beginning with his first
absence on June 13, Sanders was absent 6 times, 2 of which were Saturdays.
Moreover, during the less than 4 months in 1950 prior to his discharge, Sanders
had 2 half-day and 11 full-day absences, including 8 Saturdays. And it is par-
ticularly noteworthy that 5 of those absences, all for full days and 4 of them on
Saturdays, occurred during the last month of Sanders' employment. The dates
of these last 5 absences were March 25 and April 1, 14, 15, and 22.
From the testimony of Bietz and Sanders, it appearrs likely that Bietz excused
Sanders early on at least one occasion, probably in January 1950. It is also prob-
able that Sanders, who lived off the main road and did not have a telephone,
may have been unable because of stormy weather to get to the plant a few times
during February, a month during which he was absent 5 full days, only 2 of
which were Saturdays.
But whatever excuses Sanders may have had for some of the earlier absences,
I am not satisfied that Sanders actually had plausible excuses for his last five
absences . In my opinion, the evidence establishes that the plant worked on
March 25 and on April 1, and that Sanders was also expected to work on those
Saturdays. As to April 14 and 15, Sanders' testimony that he was sick both o'
those days does not accord with the explanation which he gave Comer for thob,
absences, and the records of Dr. John Glackman establish that Sanders did not
visit his doctor during 1950 until April 22. Sanders testified that, at the time he
told Foreman Dorsett on Friday, April 21, that he would not be in to work
Saturday, he intended to see his doctor the next day. Sanders admitted, how-
ever, that he did not then have an appointment with his doctor and that he did
not mention anything about seeing a doctor to Dorsett. Upon the basis of the
testimony of Dr. Glackman, I believe, contrary to Sanders' testimony, that the
treatment which Sanders received on April 22 would not have prevented his
working that day if he had desired to do so. It should be noted that Sanders
attended a union meeting the night of April 22 and thereafter waited in town
until midnight to take his wife home from work in the car. In addition, a com-
parison of the dates of Sanders' visits to his doctor for treatments like that
received on April 22 with Sanders' attendance record clearly establishes, again
contrary to Sanders' testimony, that Sanders, who worked on the second shift,
customarily came to work on the days upon which he received such treatments.
Sanders testified that he had never received any type of warning. Yet Sanders,
who had never called in before, explained that he called Bielz on the afternoon
of April 22, because he knew Bietz was behind in the work on dies. Bietz testified
credibly that, although he had not personally warned Sanders about his absences,
he had, on two occasions, told Foreman Bunting that he would have to talk to
Sanders to get Sanders to be "more regular on the job" because they could not
"keep the headers going without the dies-each day," and that on both occasions
Bunting had reported back to him that he had talked with Sanders and that
Sanders had said that he would try to improve his attendance. Howton also
testified credibly that he had talked with Sanders about his absences , explaining
to Sanders that his work was needed ; that he was expected to work Saturdays
the same as other employees ; and that it was usual shop practice to lay off
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who were absent 3 days or more without notice. Further, as has been
found above, Schroeder had warned Sanders at the time of his reemployment
that absences were cause for discharge.
Everything considered, neither the fact that Sanders was never specifically told
that his next absence would result in discharge, nor the further fact that the
Respondent's shop rules were not procedurally followed, can here be considered
controlling. Absenteeism clearly has been the Respondent's most prevalent rea-
son for discharging employees ; the subsequently posted rules are not ambiguous
as to discharges for absenteeism ; and I am satisfied that Sanders realized that
his absences could result in his discharge. That Sanders' absenteeism was
becoming progressively worse is beyond dispute. His work was needed and he
knew it. He did not present, nor did he apparently have, reasonable excuses for
his more recent absences. And save for his remark to Dorsett on April 21, and
his belated call to Bietz on April 22, Sanders did not notify the Respondent on
the occasions of his absences. Under such circumstances, although Sanders was
a good workman when he reported for work, the Respondent was "not required
to continue to acquiesce indefinitely" in conduct which so clearly warranted
discharge.8°
In summation, even though I believe, for reasons similar to those set out below
in discussing Meyer's case, that the Respondent knew of Sanders' union activities
at the time it discharged him, I do not believe that, under the circumstances here
pertaining, the reason consistently advanced by the Respondent for discharging
Sanders can be held to be merely a pretext, as the General Counsel contends. Nor
am I prepared, despite some doubts raised by the evidence as a whole, to say that,
absent the Union, the Respondent's treatment of Sanders would have been mate-
rially different in its timing or in its results. This is not to say, however, that
absent his ideas as to how long each week a plant should work, Sanders himself
might not have worked more regularly on Saturdays. But an employer is not
required to permit any employee, whatever may be known about his leadership
in organizational activities, to set his own individual terms of employment.
Everything considered, it is my opinion that the Respondent's discharge of
Sanders was not violative of the Act, and it will be recommended below that the
complaint as to Sanders be dismissed.
5. The setting for the discharge of Meyer as advanced by the Respondent
In brief, this is the picture the Respondent presents of Meyer's discharge.
In February 1948, when Meyer entered the Respondent's employ, he had had
no previous factory experience. However, Meyer "learned quickly, made a
certain number of suggestions that had merit" and Schroeder was "interested
in him." ° But during December 1948, Meyer had trouble with three of his
former supervisors, the superintendent, the foreman, and the master mechanic,
who decided to "let him go." When Schroeder intervened as Meyer was about
to leave the plant, the three supervisors said that Meyer refused to do as asked,
complained constantly about his pay and not advancing rapidly enough, and
made mistakes in his work which had to be done over. Yet, because Schroeder
thought Meyer had potentialities, his "influence resulted in saving Meyer's job
at that time."
Meyer continued in the Respondent's employ, but his poor workmanship as a
mechanic in the toolroom was the source of numerous complaints. Meyer worked
-See Vogue-Wright Studios, Inc., 76 NLRB 773, 811, where the circumstances sur-
rounding the discharge were similar.
ei These quotations are from Schroeder's testimony. Most of the other quotations in
this section are from the Respondent's brief.
INDIANA METAL PRODUCTS CORPORATION 1081
"too fast" and made -" too many mistakes." One foreman, George Babarik,
"continuously complained " to Superintendent Dietz about Meyer's work, and
asked Foreman Howton "not to let Meyer do work" for his department . Meyer's
work in setting up two new Sems machines was complained about by Foreman
James Moudy . About a year before Meyer was discharged , Schroeder learned
at a foremen 's meeting of an incident which had occurred when Meyer at first
refused to do work assigned to him by Foreman Dorsett, and then threatened
to mess up some dies so he would not have to work on dies any more.
In addition to receiving complaints about Meyer , Howton, the new toolroom
foreman who had had considerable previous experience , also observed that Meyer
did "a lot of bad work" and that Meyer did a lot of visiting not in connection
with his work . Meyer also asked Howton for wage increases several times.
Schroeder , who liked Meyer personally and had "protected" him, instructed
foremen to talk to Meyer. Howton told Meyer about complaints he had received
concerning his work
Such "back history contributed greatly," the Respondent contends in its
brief, to Meyer 's discharge on April 22 , after he went up to the time card rack
when Bietz removed Sanders' card from it. The conflicting evidence as to what
Meyer did during the short period remaining before quitting time is considered
below. It is the Respondent 's position that Howton observed Meyer going
through the toolroom talking with other employees ; that he had ,observed Meyer
doing the same thing on an earlier occasion ; and that Howton complained to
Bietz just before 3: 30 p. in. Saturday , April 22, about Meyer 's actions.
In its brief the Respondent , citing testimony of Schroeder , Bietz, and Howton,
explains in the following language what happened following Howton's complaint
to Bietz which led to the removal of Meyer's time card from the rack shortly
after Meyer punched out at 3: 31 p. in. on April 22: 0
This was not the first time Howton had complained to the Superintendent,
and he said he would like to let Meyer go. Bietz told Howton : "Well, you
have complained before and you are the foreman. You are responsible for
running the place, for getting out the work. From your complaints I have
to back you up." [Bietz] Bietz now returned to Schroeder 's office and in-
formed Schroeder of Howton 's complaint to him about Meyer and what had
'taken place and how Howton felt. Schroeder said: "Let us bring Howton in.
I want to hear his story ." [ Schroeder ] Howton came in and in the pres-
ence of Bietz told Schroeder about Meyer's activity at that time . Howton
added : "This is not the only time that he has walked to the card rack to see
when a card was pulled out. He is a busy body ; always pays attention to
other people's business more than his own ." [ Schroeder ] Bietz then said
that Howton "would like to let him go." [Schroeder] The back history of
Meyer, the constant complaints, the expressed dissatisfaction with his posi-
tion and his pay, the complaints about him going about the toolroom with
gossip on company time must have passed through Schroeder's,mind. As
we have already seen , other foremen had had cause and the desire to dis-
charge Meyer but Schroeder had always protected him. Now he said:
"This is entirely in your hands. It is up to you fellows, you decide what
you are going to do. I have gone along here arguing with not only you
fellows but your predecessors ; arguing for this man. I am all through
arguing. I will not make a statement ; it is up to you, whatever you want
to do." [Schroeder ] Howton, Meyer 's foreman , said : "Well, as tar as I am
62 The page citations given in the brief have been omitted , but I have checked all quota-
tions I find that, ignoring some minor variations , mostly in punctuation , each quotation
accurately reflects the testimony of the individual indicated in brackets following it.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerned, I think we should let him go right now." [Howton] It was
Howton who decided that Meyer wag to go Bietz agreed with Howton.
At that moment Meyer was discharged.
6. Analysis and conclusions as to Meyer's discharge
On the whole, I am unable to accept the foregoing explanation of Meyer's dis-
charge. The Respondent's picture is essentially not in keeping with the expla-
nation contemporaneously given, on April 24, to the Division and to Meyer
himself. Nor does it appear reasonable on its face that Manager Schroeder
would have protected an incompetent, insubordinate, and discontented employee
to whom he apparently owed no obligation, for so long a period of time in the
face of repeated complaints of the type the Respondent now contends were made
about Meyer. And it seems particularly unlikely, had Meyer actually been the
kind of employee the Respondent now portrays, that Schroeder, after discharging
Meyer, would have indicated, as he admittedly did, a willingness to consider
Meyer for reemployment. In addition, it strains credulity to believe that absent
some ulterior purpose, Schroeder, who admittedly considered Meyer a promising
employee and who customarily exhausted carefully the cause for discharging
employees with more than 60 days' experience, would have failed, as he
admittedly did fail, to confer with Meyer about his conduct before concurring
in his discharge. We turn now to a more detailed evaluation of some of the
elements which the Respondent presently contends contributed to its discharging
Meyer.
Meyer's version of the December 1948 incident is in striking contrast to that
of the Respondent, based largely on Schroeder's testimony as to various com-
plaints which the three former supervisors made to him at the time they allegedly
decided to discharge Meyer. According to Meyer, he was not discharged on
that occasion, but decided to quit after Master Mechanic Norbicht, whom he had
asked for an increase, told him that he could not get any more money unless
he would go on the night shift. Meyer did not want to work on the night shift,
so he told Norbicht that he was "going to quit," and went into the office and
asked Schroeder how soon he could pick up his check. Schroeder wanted to
know what the trouble was and Meyer told him. Schroeder then told Meyer to
wait for a few minutes, saying that he wanted "to talk to the boys first." There-
after Harriman, then the superintendent, talked with Meyer about staying but
did not offer him any increase. When Meyer still indicated that he intended
to quit, Harriman told him to go home and think it over and return if he decided
he wanted to come back. Meyer took his tool box, went home, thought it over,
decided that he would not quit after all, returned to the plant that night, asked
for his job back, and was welcomed back.
While Meyer, as the Respondent points out in its brief, did exaggerate his
garage experience, exhibited some egotism 83 and was at a loss as to whether a
remark by Foreman Dorsett, discussed below, constituted a warning, I am satis-
fied that Meyer was, on the whole, and in contrast to Sanders, a truthful witness.
The version which Meyer gave of this 1948 incident, in contrast to Schroeder's
testimony thereon, impressed me at the time the testimony was heard, and
impresses me upon repeated restudy of the record, as the more plausible of the
two versions. On either version, Schroeder obviously sought to retain Meyer
in the Respondent's employ. I credit Meyer's version, above summarized, as
revealing the true import of the incident, and I find that the Respondent's distor-
63 A tendency not too uncommon in energetic young men.
INDIANA METAL PRODUCTS CORPORATION 1083
tion of an incident which took place some 16 months before Meyer's discharge
detracts from rather than supports the position which the Respondent now seeks
to establish.
An additional incident, involving Meyer's argument with Dorsett concerning
working on dies, apparently occurred before the above incident of December 1948.
Dorsett testified in June 1951 that the incident occurred "a long, long time ago,"
perhaps "three and a halt years ago," in "tile neighborhood of 1948," and-that
Schroeder learned of it when Dorsett brought it up at a foremen's meeting which
discussed Meyer's conduct about the time Meyer "had been dismissed by his job
foreman and Mr. Schroeder interceded for him," the Respondent's version of
the December 1948 incident. On direct examination by the Respondent, Dorsett,
who was Meyer's foreman during the early part of Meyer's employment, gave
this version of the incident. Meyer did not "like to do dies." Off one occasion
when Dorsett asked him to drill some dies, Meyer said he could not drill dies.
Dorsett said that he could ; that they had girls who could do it. Meyer said, "I
am going to mess some up and I won't have to do dies no more." Dorsett replied
that he did not think that would be "a very good idea." On direct examination,
Dorsett further testified that he could not recall whether he had told Meyer "you
better do them or else ;" that he had found Meyer "a very good worker" until
Meyer told him he did not like to do dies ; and that as to Meyer's work for him,
he had "found it to be 0. $." When asked if he had ever warned Meyer, Dorsett
replied , "Well, Meyer did good work for me."
Schroeder's version of what Dorsett reported to him does not differ materially
from Dorsett's version of what had happened . Schroeder testified that Dorsett
"related to me what occurred and my concern was, did he [Meyer] or did he not
do the job, because if he had not done the job he would have been discharged
then. I learned that he did the job."
In his testimony, Meyer readily admitted that on one occasion he told
Dorsett that he was having trouble with the dies and that he would not run
them. Meyer explained that he had done this not because he disliked working
on dies, but because he had been having trouble working on them in view of the
condition of the dies, 14 Meyer testified convincingly that he "absolutely did
not" tell Dorsett that he was "going to screw up some header dies" so that he
would not "be asked to do them again." According to Meyer, Dorsett told him
to "run them or else," or " something similar to that," and he did not thereafter
make any reply.
I believe that Meyer's version of this incident more accurately reflects what
transpired than does that of the Respondent. I am satisfied that Meyer did not
threaten to mess up dies and that he did run the dies in question after Dorsett
flatly overruled his protest. In view of Dorsett's admissions as to the satis-
factory nature of Meyer's work for him , and the relatively innocuous nature of
the incident as a whole , it would appear that the Respondent is going far afield
in advancing so remote an occurrence, especially when its shop rules provide
that even offences serious enough to warrant written warnings 86 are to stand
against an employee's record for only 1 year.
The most specific evidence adduced by the Respondent in support of its present
contention that Meyer was a poor workman concerns the installation in Feb-
ruary 1950 of two Sems machines in the roll thread department of which James
64 It will be remembered that the incident involving Sanders in January 1949, discussed
above, on any version admittedly involved the condition of the dies at about this time.
66 In my opinion Dorsett's use of some such phrase as "run them or else" during his
discussion with Meyer, resulting as it did in compliance with Dorsett 's instructions, did
not constitute a warning within the usual meaning of that term as applied to shop disci-
plinary procedure.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moudy was foreman . Moudy testified on direct examination that Meyer installed
the two Sems units in his department , using blueprints which came with them ;
that the holes drilled were not in correct positions but were "at an angle" so that
when the rail on one side was tightened up, the rail on the other side would
push up ; that "the machines had to be re-worked over in order to make them
line up" so that they could be used ; and that they "had to plug the holes and
re-tap them." On cross-examination Moudy testified , "Well , we had the one
machine on and it wasn 't working right, so in about three or four weeks we started
to use the other machine and it was the same way " ; that he then reported the
matter to Schroeder when he found that both machines "were the same way" ;
and that he did not know if Meyer had ever been warned about the incident.
Moudy further testified that he did not mention the matter to Meyer and that he
could not recall which of the toolroom employees had reworked either machine.
Meyer testified that the new Sems units were put on machines which the
Company already had; that he and Moudy "went over the blueprints together
and laid out the parts together and worked together during the whole operation" ;
that he and Moudy worked "side by side putting those units on" until the job
was completed ; and that Moudy "never said a word" to him by way of complaint
concerning the installation of those units . I credit Meyer's testimony, which
was not denied by Moudy, that the two men did work side by side installing
the two new Sems units . Moudy's testimony that the units were improperly
installed and had to be reworked was not convincing when given, and was not
corroborated by any other evidence that the units actually ever were reworked.
I am not convinced that they were reworked , and I believe that any such defects
in-the installation of the Sems units as there may have been were minor and
were attributable as much to Moudy as to Meyer. This incident , in my opinion,
lends no support to the Respondent 's position.
There is a good deal of general testimony and opinion evidence as to Meyer's
poor workmanship , and as to reports of complaints about his poor work. The
import of this testimony is indicated , although not in detail, in the opening
paragraphs of the preceding subdivision of this Report, which summarizes the
Respondent 's position as to Meyer . No purpose would be served by detailing the
testimony . It is sufficient to say that, in its totality , this testimony was no more
convincing in supporting the Respondent 's contentions than that concerning
the above -analyzed three specific incidents . In general , I believe that the
Respondent 's evidence as to supervisors making complaints to one another about
Meyer 's poor work was highly exaggerated , to say the least, especially the testi-
mony of Foreman Babarik.
Two of Meyer 's fellow -employees in the toolroom , when called in rebuttal
by the General Counsel , testified as to the quality of Meyer's work. Charles
Cooper , who does drill press work , testified convincingly that Meyer had made
tools for him to use, including die stands and counter borers, and that he
had "no fault to find" with the quality of any of Meyer 's work. Albert Tharp,
a bobber, testified convincingly that Meyer had made tools for him, including
hobbs and stands used at the drill press, and that as to quality, they were "all
right, just as good as anyone else " ever made for him. Meyer testified forth-
rightly that the only time anyone ever spoke to him about his work was when
Foreman Bunting told him, during 1949 , that some feed rolls he had made were
not perfect , but that he later found that the rolls were used and not scrapped.
Meyer also frankly admitted on cross-examination that there were times when
he had to take a part "back to the toolroom and do some more work on it"
and that there were "a few incidents " when "parts had to be scrapped and
remade ," but there is nothing in the record which convinces me that this was
unusual toolroom procedure.
INDIANA METAL PRODUCTS CORPORATION 1085
The only evidence pointed to by the Respondent that any of Meyer 's super-
visors ever criticised Meyer 's work to Meyer himself is testimony of Howton
which was not convincing . Howton , who testified that Meyer did "a lot of
bad work," and that he received many complaints from other foremen about
Meyer's work , answered a question as to whether he had had a conversation
with Meyer about his work by stating only , "Well , when they [ other supervisors]
brought it up , I told him about it, yes."
I do not believe , everything considered , that Meyer 's work was below average
or that Howton ever told Meyer of any complaints about his work . Nor is there
any evidence that any of his supervisors ever told Meyer that he should work
less rapidly and do his work more carefully , the logical procedure , if, in fact,
Meyer was "too fast " with his work and poor workmanship was the result. It
is obvious on the face of the Respondent 's report of April 24 to the Division that
nothing resembling bad work was then advanced as a reason for Meyer's dis-
charge. - I am- equally certain , from the evidence as a whole , including Meyer's
unequivocal and persuasive denials when called as a rebuttal witness, that
Schroeder , on April 24 , did not say anything to Meyer about receiving com-
plaints from his supervisors concerning his work ; did not say anything about
faulty work on Meyer's part; did not give faulty work as a reason for dis-
charging him ; and did not tell Meyer that he was being discharged because of
an accumulation of charges against him. Further , it is highly unlikely that
a firm which values its reputation for integrity would have given Meyer such
a letter of recommendation , if one of the causes of his discharge , in fact, had
been poor workmanship . In short, it is my conviction that the Respondent, in
now raising the issue of faulty workmanship , is seeking to bolster its position
by injecting an element which not only did not enter into Meyer 's discharge,
but which has only a highly tenuous basis , if any at all , in the facts as they then
really existed.
A study of the conflicting evidence concerning Meyer 's talking in the plant,
particularly with reference to the incident of April 22 , leaves no doubt in my
mind that the Respondent 's version of this aspect of the case is greatly over-
blown. It is undisputed that Meyer did go to the card rack , which is in one
end of the toolroom near the drinking fountain and the rest rooms, shortly
after Bietz removed Sanders ' card from the rack about 3: 20 p . m. on April 22.
Meyer also thereafter admittedly spoke to one toolroom employee during the
approximately 10 minutes remaining before quitting time, and there is contra-
dicted evidence that he spoke to several others. But whatever version of Meyer's
activities during that 10-minute period be accepted , his activity was a far cry
from the picture which Schroeder first gave , when he testified that Bietz had
advised him that "Meyer was on another one of his inter -plant binges." How-
ton's testimony on direct examination that Meyer "went up through the shop
telling everybody whose card was pulled and talking to them" was shaken on
cross-examination . For instance , Howton admitted that he had actually seen
Meyer speak to only part of the toolroom employees before he left to tell
Bietz, and that he had then gone with Bietz to Schroeder 's office about 3: 25
p. m.66 It should further be noted that the testimony of Foreman Babarik as
to what he had observed was not only shaken on cross-examination but differed
in material respects from the testimony of Howton.
On the other hand, Meyer's version was that after he had observed that it
was Sanders ' card which had been pulled, he spoke to no employees' other
86 The Respondent 's version places both Bletz and Howton in Schroeder 's office when the
3:30 p m . whistle blew . Before that , according to the Respondent 's timing, Howton
had reported Meyer's actions to Bietz , Dietz had gone to the office to report to Schroeder,
and Dietz had returned with llowton so Howton could tell his observations to Schroeder.
1086 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
than Dale Peterson," and then went back to work, taking "maybe two minutes."
In general, the testimony of other toolroom employees called by the General
Counsel corroborates Meyer's version of what happened that afternoon and
refutes various elements in the testimony of the Respondent's witnesses. On
the whole, I believe that the General Counsel's version of Meyer's activity,
after he went to the time-card rack, reflects the facts substantially more con-
sistently and accurately than that of the Respondent. At most, the evidence
warrants finding that about 3: 20 p. in. Meyer, without removing any cards,
looked at the rack to see whose card was missing, and thereafter spoke briefly,
and in a manner which involved no disorderly conduct or disturbance, with
no more than a very few employees, taking no more than a few minutes.
The evidence does not convince me that Meyer had any habit of talking
and visiting in the toolroom, to which the incident of April 22 can be con-
sidered a culminating offense. While Howton testified that Meyer "did a
lot of visiting around," he admittedly never had called any such activity
to Meyer's attention. Admittedly Howton did not speak to Meyer on the
occasion of his alleged prior visit to the card rack, nor on the occasion
of the admitted visit of April 22, although under the Respondent's shop
practices the first warnings should have come from the foreman. Instead of
giving Meyer any kind of warning for what Howton testified was Meyer's
second offense, Howton went, according to his testimony, to Bietz on April 22
and asked him "what we should do about it"; Bietz suggested that they talk
to Schroeder. Whatever actually happened among Howton, Bietz , and Schroe-
der thereafter on April 22 with respect to Meyer, it is clear that Meyer received
none of the several warnings which are provided for in the shop rules which
Schroeder testified were in effect. There is no doubt that other employees
looked at the card rack from time to time. It is also clear that there was
no rule against employees talking in the toolroom, and I believe and find,
on all the evidence," that Meyer's conduct in that respect was not out of
line with shop practice.
Considering the evidence in its totality, I am convinced that when Schroeder
learned on April 22 of the time-card incident, he welcomed what was actually
an innocuous occurrence, presented to him merely by coincidence,' because
it gave him what at first seemed a plausible basis for getting an energetic
young employee, whose abilities he respected, out of the picture, at least tem-
porarily. However the decision to discharge Meyer may actually have been
reached, I do not believe that Schroeder, whose role in the practically simul-
taneous discharge of Sanders was so emphatic, reluctantly gave way before
the urgings of his then recently employed subordinates, especially since there
was not, in fact, any "back history" which could have operated in Schroeder's
mind as the Respondent depicts. However, the evidence does indicate that
Meyer, an ambitious young man with obvious leadership qualities, wanted
increased wages at a time when the Respondent's board of directors, ap-
parently without having then announced it, had decided to peg 1950 wages
to the BLS cost-of-living index, which did not then justify a wage increase.70
er It is logical that Meyer would have spoken to Peterson, since he was the third employee
in the toolroom who initially had signed a union card.
68 For instance, toolroom employee Tharp testified credibly that Meyer did not talk to
other employees any more than he or the "rest of the fellows" did.
69 While there are some elements in the record which suggest the possibility that a trap
was deliberately laid for Meyer, I draw no such inference.
70 Schroeder testified that this decision of December 1949 did not result in a wage change
until September 1950, because the index did not advance enough until that time to justify
an increase.
INDIANA METAL PRODUCTS CORPORATION 1087
To find a plausible explanation of its discharge of Meyer, we must turn
elsewhere, for the Respondent's present position merely camouflages its true
motive. The potency of the Respondent's desire to avoid being unionized
was made manifest not long after its discharge of Meyer through the above-
discussed letters from Schroeder to its employees during the Respondent's
campaign to defeat the Union. This desire is also shown by the acts of the
Respondent which have been found hereinabove to constitute unfair labor
practices. All factors considered, I am convinced that the Respondent's real
reason for discharging Meyer was because it feared that, with leadership such
as his, the Union might get into the plant. Thus while Schroeder really had
nothing against Meyer as an employee, and apparently even liked him per-
sonally, as a union leader Meyer became in Schroeder's eyes a potential
troublemaker. The statement presented in the above-quoted report to the
Division but thinly veils this underlying reason, as do the explanations which
Howton and Schroeder gave Meyer on April 24 about his not being "satsified."
Hence Schroeder welcomed a pretext to get Meyer out of the picture, at least
until the organizational campaign had been defeated. I have no doubt that the
discharge of Meyer was the Respondent's opening maneuver in what later
developed into an active campaign against the Union."
One contention strongly urged by the Respondent, that it then had no knowl-
edge of the Union's activities or those of Meyer, remains to be considered. The
inception of the Union's organizational campaign is outlined in section III, A,
above. Two meetings of the Union had been held, one on April 8 and another
on April 15, prior to the time the Respondent contends it discharged Meyer, and a
third, on April 22, was held before it informed Meyer of his discharge. I do not
believe, contrary to the Respondent's contention, that the Union's campaign was
cloaked in secrecy. The foregoing three meetings were held in the Farm Bureau
Hall in Rochester. After the first meeting on April 8 , Sanders admittedly saw in
a restaurant in Rochester, Foreman Dorsett, who, along with General Foreman
Howton, had supervision of the toolroom where three of the original union mem-
bers worked, and tossed a folder of matches, carrying the Union's name on its
cover along with some of the things the Union stood for,' on the table at which
Dorsett was seated. As he did so, Sanders asked Dorsett either what he drought
of it or why he did not join a good union and Dorsett responded with some itc11
remark as "Oh, Brother" or "Oh, my God." I do not credit Dorsett's testimony
that he attached no significance to the incident and related it to no one. On
the contrary, I am satisfied that the Respondent learned of the Union' s activities
shortly after the first meeting.
While there appears to have been no solicitation of members in the plant, and
very little discussion of the Union in the plant, during the campaign to sign up
members, which followed the first meeting, some activity did take place in the
parking lot adjoining the plant. Meyer talked with employees while seated in an
automobile in the parking lot during the lunch period. Meyer also signed up
employees during the lunch period, but at such times they apparently drove away
from the plant. During approximately 8 evenings before his discharge, Meyer
went to the homes of employees to sign up union members. From the evidence as
a whole, and from my observation of the witnesses at the hearing, I am sdtisf4ed
that Meyer was one of the most, if not actually the most, active and effective of
"My only doubt is whether the discharge of Sanders may not also have been part of
that same maneuver.
72 Among the four points listed, one is as "Better Wages "
1088 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
those initially participating in the Union's drive." With a plant having so few
employees, approximately 60, in a community of only 4,600 population, I deem it
highly unlikely that Respondent would not have learned of the activity of Meyer
on behalf of the Union. Under all the circumstances revealed by the record,
including the various pretexts which the Respondent has advanced for Meyer's
discharge, I infer and find that the Respondent, prior to April 22, knew that Meyer
was a leader in organizing for the Union.
Some events at the plant on April 24 lend plausibility to my inference that the
Respondent knew of Meyer's union activity. The morning of April 24, Foreman
James Moudy was looking for Meyer and asked Bill Carini, the heat treat man
in the toolroom, where Meyer was. Carini, the employee who then had the respon-
sibility for collecting the money from the various vending machines in the plant
and depositing it in the bank to the credit of the welfare fund, which was later
taken over by the Committee, and who was the employee who later, according to
Schroeder, repeatedly urged him to consider approving the Committee," told
Moudy that he (Carini) had told Meyer "a few days ago that he would be fired on
account of working up a union, agitating a union." There is nothing in the
account of this incident, which Moudy gave when called as a witness by the
Respondent, which convinces me that Moudy was surprised to hear Carini's
reference to Meyer's organizational activity for the Union. Nor does it seem
likely that Moudy would have relayed Carini's remark about Meyer's discharge
later that day to at least one other foreman at the plant in such an apparently
casual way, if its content had appeared to him particularly surprising or
improbable.4'
In section III, C, 2, above, findings appear as to a conversation on the after-
noon of April 24, during which Foreman Roe warned employee Sheetz that
employees who signed union cards were going to be discharged. I am convinced,
on credited testimony of Benjamin-Severns, that a second conversation of some-
what similar import took place that afternoon in the plant when Chief Inspector
Albert Thompson approached Severns , a floor inspector in Thompson' s depart-
ment, and told him, after first asking Severns if he knew why Sanders and Meyer
had been laid off, that they had been laid off "because they were instigators" of
the Union and Schroeder did not like the Union."
From all of the foregoing and upon the record as a whole, I conclude and find
that the Respondent discharged Howard Meyer on April 24, 1950, and has since
failed to reinstate him, because of Meyer's membership in and activity on behalf
73 It should be noted that Lyman Dorson, one of the employees who attended the first
meeting, testified on cross-examination when called as a witness by the Respondent that
the only meeting which he attended was the meeting on April 8; that he was off work
because of a sore hand for 2 weeks after that ; that he was asked, but never attempted to
assist in organizing for the Union ; and that he became a foreman that June.
74 See footnote 14, above.
75 Moudy testified that he repeated Carini's remark to Foreman Roe and possibly to
Foreman Lewis
76 Severns , a member of the Committee called by the General Counsel , impressed me as
a truthful witness . Thompson , whose credibility was somewhat impeached , unconvinc-
ingly denied Severns' testimony. It should be noted that the General Counsel did not
contend that the above conversation constituted a violation of Section 8 (a) (1) of the
Act, and no such finding is made. It should further be noted that I am not making a
finding that , as contended by the General Counsel , Foreman Harry Wink, in reply to a
question asked by Foreman Thompson in the presence of employee Robert Bumbarger at
lunch on April 24, stated that Meyer had been "fired because he was trying to organize
a union in the factory." Wink and Thompson both denied the incident as testified to by
Bumbarger , each giving a plausible explanation of why he felt sure that he was not eating
at the restaurant involved at that time . Although I do not feel certain that the conversa-
tion did not take place as Bumbarger testified , the weight of the evidence does not, in my
opinion , warrant finding that it did.
INDIANA METAL PRODUCTS CORPORATION 1089
of the Union, and that the reasons advanced by the Respondent for his discharge
are pretexts to conceal its inherently discriminatory motive. By thus discrim-
inating against Meyer in regard to his hire or tenure of employment, the Respond-
ent has violated Section 8 (a) (3) of the Act. By such discrimination, the Re-
spondent has also discouraged membership in the Union, and has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discharged Howard Meyer because of his
union membership and activities. It will be recommended that the Respondent
offer Meyer immediate and full reinstatement to his former or substantially
equivalent position," without prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any loss of pay which he may
have suffered by reason of the Respondent's discrimination against him, by pay-
ment to Meyer of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of the Respondent's
offer of reinstatement, less his net earnings during said period.78 The back pay
shall be computed in the manner established by the Board in F. W. Woolworth
Company, and the Respondent shall make such reports available to the agents of
the Board as provided therein 48
It has been found that the Respondent initiated, sponsored, interfered with,
dominated, and contributed support to the Advisory Committee. It will there-
fore be recommended that the Respondent cease and desist from all interference
with and support of the Committee, and further that the Respondent disestablish
said Committee as the representative of any of its employees for the purpose of
dealing with it concerning grievances, labor disputes, wages, hours of employ-
ment, or other conditions of employment, and that the Respondent refrain from
recognizing the Committee, or any successor thereto, for any of the foregoing
purposes.
Since the unfair labor practices found to have been committed by the Respond-
ent go to the very heart of the Act and indicate an intent to interfere generally
with the rights of employees guaranteed by the Act, the preventive purposes of
the Act will be thwarted unless the order is coextensive with the threat. There-
fore, in order to make more effective the interdependent guarantees of Section 7
and to prevent a recurrence of unfair labor practices which burden and obstruct
commerce, it will be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act.
7T7 The Chase National Bank o f the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
78 Concerning "net earnings ," see Crossett Lun7§er Company, 8 NLRB 440, 497, and
Republic Steel Corporation v. N L. R. R, 311 U S. 7
19 See F. W. Woolworth Company, 90 NLRB 289
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CoNcLusloNs or LAW
1. The operations of Indiana Metal Products Corporation, Rochester, Indiana,
occur in commerce, within the meaning of Section 2 (6) of the Act.
2. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, C. I. 0., and the Advisory Committee, are labor organi-
zations, within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Howard
Meyer, thereby discouraging membership in a labor organization, the Respondent
has engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (a) (3) of the Act.
4. By initiating; sponsoring, interfering with, dominating, and contributing
support to the Advisory Committee, the Respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (a) (2) of
the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent has not violated Section 8 (a) (1) and (3) of the Act by
discharging and refusing to reinstate John Sanders.
[Recommendations omitted from publication in this volume.]
Appendix A
Note to All
Our continued progress together is going to depend on everyone working
together. We need each other's cooperation. counsel, advice, and suggestions.
To create a proper channel for an exchange of ideas we are asking you to
choose an Advisory Committee from amoung (sic) your fellow workers.
Between now and Friday, October 6, we ask you to give careful consideration
to the person in your department whom you think will represent your best
interests.
On Friday we will distribute ballots and you will be given an opportunity to
vote for the person of your choice.
The following departments or units will each elect one representative: Tool
Room, Press Dept., Header Dept., Threader Dept., Shipping Dept., Inspection
Dept., Maintenance and Foremen's Group, and Lamp Department.
This group will serve as a guide and counsel to management and will discuss
the administration of all company policies, grievances, seniority, promotions,
insurance, employee welfare, athletics, picnics, production, working conditions,
schedules, methods and suggestions.
Our entire business structure may undergo a number of changes in the very
near future resulting from a stepped-up war program. These changes can
conceivably affect each of us and consequently we want everyone to be heard-
the proposed committee, we believe, will make this possible.
In the early stage of this program it will be necessary to meet every week-as
time goes on and various problems are disposed of it will not be necessary to
meet as often.
INDIANA METAL PRODUCTS CORPORATION 1091
Tentatively the committee will meet with the General Manager every Friday
at 3: 30 P. M.
- The committee will be changed every six months by secret election, thereby
permitting everyone to serve. Or any member can be recalled if a majority
in, a department feel that he or she is not serving every one's best interest. Or
a member can be re-elected as often as you choose.
This is going to be an important assignment. Decisions arrived at can affect
all of our futures so please give the person of your choice very careful
consideration.
Appendix B
NOTICE TO ALL EMPLOYEES
N F. SCH ROEDER
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the -National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA.
C. I. 0., or aie other labor organization, by discharging or refusing to
reinstate any of our employees, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT interrogate or threaten our employees concerning their
union activities or sympathies, or institute benefits, such as paid holidays
or insurance plans, to induce our employ ees not to designate INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, C. I. 0., as their collective bargaining representative.
WE WILL NOT sponsor, interfere with, dominate, or contribute support to
the Advisory Committee, or initiate, sponsor, interfere with, dominate or
contribute support to any successor to it, or any other labor, organization.
WE WII.L NOT in any other manner interfere with, restrain, or.Goeree our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0.,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE HEREBY DISESTABLISH the Advisory Committee as the representative
of any of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, hours of employment, or other conditions
of employment, and we will not recognize it, or any successor thereto, for
any of the foregoing purposes.
WE WILL offer Howard Meyer immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay he may have suffered as a result of the discrimination against
him.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT
227260-53-vol . 100-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C I. 0., or any other labor
organization, except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the Act. We will not discrimi-
nate in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or nonmembership in
any such labor organization.
INDIANA METAL PRODUCTS 'CORPORATION,
Employer.
Dated -------------------- By -----------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
BAKERY DRIVERS LOCAL UNION No. 276, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMER-
ICA, AFL and CAPITAL SERVICE, INC. Case No. 01-CC-130. Sep-
tember 8, 195.
Decision and Order
On July 15, 1952, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (b) (4) (A) of the National Labor
Relations Act and recommending that the Respondent cease and de-
sist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent and the charging party, Capital Service, Inc., hereinafter
called Capital, filed exceptions, with supporting briefs, to the Inter-
mediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error has been committed.
The Board has considered the Intermediate Report, the exceptions,
the briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following modification :
In its exceptions, the Respondent contends that the Trial Examiner
failed to differentiate between the picketing at the employee and deliv-
ery entrances to the stores of the secondary employers and the picket-
ing at the customer entrances to such stores.' The Respondent main-
tains that the customer entrance picketing, directed to the consuming
public, is not violative of Section 8 (b) (4) (A), and that the order
recommended by the Trial Examiner is erroneous to the extent that it
encompasses the customer entrance picketing. In its exceptions, in
1 There was also evidence of direct inducement of drivers not to make deliveries to the
secondary employers.
100 NLRB No. 164.